Downloading Age Camera Photographed by Mark Ostow, April 23, 2004

ALSO INSIDE: FACULTY FACE OFF ON GAY MARRIAGE RULING

Harvard LawSummer 2004 bulletin

THE INTELLECTUAL PROPERTY ISSUE Teaching, views and practice in the downloading age Camera photographed by mark ostow, april 23, 2004

A scene from “The Crucible.” The Arthur Miller play was staged with a cast of Harvard students at HLS in April under the direction of Professor Bruce Hay ’88. Inside This Issue Harvard Law SPECIAL SECTION: bulletin SPOTLIGHT ON INTELLECTUAL PROPERTY 17 Musical Choices HLS professors propose different ways to address the proliferation of music downloading. 24 Copyright, Patent, Trademark— Apart and Together Professor William Fisher III ’82 examines the history—and the future—of intellectual property law. 32 Teaching IP With conferences, research and ideas, HLS faculty and students keep DIRECTOR OF COMMUNICATIONS Michael Armini pace with the ever-changing world of intellectual property issues. SENIOR EDITOR 38 Emily Newburger That’s a RAP MANAGING EDITOR Musicians learn about the law and students learn about music Linda Grant

in an HLS clinical project. CLASS NOTES AND IN MEMORIAM EDITOR Christine Perkins 40 A Textbook Project CONTRIBUTING WRITER Michael Rodman Focusing on copyright issues, Professor Martha Minow EDITORIAL ASSISTANCE works to make schoolbooks accessible to disabled students. Nicole Coelho Antoun, Dharma Betancourt ’06, Lori Ann Saslav, Kelly Shapiro ’05, Tzu-Yuan Su

DESIGN DIRECTOR DEPARTMENTS Ronn Campisi 2 Letters ASSOCIATE ART DIRECTOR Alicia Jylkka

4 Student Snapshot ASSISTANT DESIGNER At the grass roots Nicole Lehmann

5 Ask the Professor EDITORIAL OFFICE Recusal decision Harvard Law Bulletin 6 On the Bookshelves 125 Mount Auburn St. Cambridge, MA 02138 The problem with humanitarianism E-mail: [email protected] 8 Faculty Viewpoints Web site: www.law.harvard.edu/ alumni/bulletin Same-sex marriage Telephone: 617-495-3118 14 In the Classroom SEND CHANGES OF ADDRESS TO: Use of force Harvard Law School, Alumni Records 43 Class Notes 125 Mount Auburn St. Cambridge, MA 02138 68 Spring Reunions E-mail: [email protected] 70 Alumni Speaker Series The Harvard Law Bulletin 71 In Memoriam (ISSN 1053-8186) is published three times a year by Harvard Law School, 84 Gallery 1563 Massachusetts Ave., Archibald Cox, 1912-2004 Cambridge, MA 02138 85 Closing © 2004 by the President and Fellows of M. Bernard Aidinoff ’53 Harvard College. Printed in the U.S.A.

COVER Illustration by Pep Montserrat Letters

“We did not achieve a great deal in the ’70s, but we existed.” —Shepherd Raimi ’55, co-founder of the Lambda Legal Defense and Education Fund

GOVERNMENT-RUN SYSTEM COULD there is also my own REWARD CREATIVITY (“An Economic i read with great interest “When Analysis of Intellec- Sharing Is a Crime” (Spring 2004), out- tual Property Rights,” 9 Fordham I.P., well as more civilized furnishings will, lining the Berkman Center conference Media & Ent. L.J. 301, 1998). Valuing the I hope, spring forth from our new exploring solutions to uncompensated rewards would be the trickiest prong of dean’s female sensibility and humanity. music sharing on the Internet. the proposal but is by no means an in- anthony beck ll.m. ’66 The problem of how to incentivize surmountable problem, especially London the creation of intellectual property when weighed against the large distri- works (such as music) while simultane- butional benefits that would follow. AN EARLY CONTRIBUTOR TO GAY ously maximizing their dissemination steve calandrillo ’98 RIGHTS MOVEMENT to all consumers who seek them has Seattle this letter is prompted by your arti- been the subject of debate for centuries. cle in the Spring 2004 issue of the Bul- Today, copyright and patent protection STATUE NOT NEEDED TO SHOW letin on the first reunion of GLBT do a fairly decent job of providing fi- CLARK’S CONTRIBUTIONS alumni. nancial motivation to creators but do a charles facktor’s letter (Spring I was a co-founder of Lambda Legal relatively poor one of ensuring distri- 2004) calls Dean Clark’s record “mixed Defense and Education Fund Inc., bution to all potential users who stand at best.” Clark was a wonderful dean. which came into existence in 1972-73, to benefit. Devices that allow music He did more than any other dean in the and I was a member of the board of sharing accomplish the distributional history of the school to improve the directors for the first 10 years or so. goal at the expense of diluting incen- quality of life of the students. Facktor Those were the hardest years for the tives to musician-innovators. asks: “Will statues be built to honor gay movement. By the 1980s, gay pride As Professor William Fisher notes, a this man?” I’d contribute toward a stat- had taken hold. But in the early ’70s, better system would be one which ac- ue, but I think Clark is too modest to for example, we could not find one les- complishes both pursuits. Analogous pose for one. bian lawyer to join our board. to his compulsory licensing scheme john jay osborn jr. ’70 In those early years, we did mount a would be a pure government-run re- San Francisco challenge to the New York sodomy law ward system, under which today’s in- in the Court of Appeals, but mostly we tellectual property works would be CONCERNED ABOUT THE ABSENCE represented lesbian mothers who were paid for by the government instead of OF CONCERN in danger of losing custody of their by the marketplace. What was formerly the letter from Charles Facktor children, and we handled a variety of private intellectual property would be- touched me painfully. The dorms are military cases. come public domain, freely repro- plainly no better than they were 40 We did not achieve a great deal in ducible by anyone at its marginal cost years ago. Far worse for a foreign stu- the ’70s, but we existed. And our very (instead of the monopoly price that dent in 1965 was the absence of con- existence was critical to the eruption of prevails under copyright or patent). Of cern. Devastated by the steely asceti- the gay civil rights movement in the course, tax revenue would need to be cism of my room in my first week after ’80s. One could say that Harvard Law raised to finance the necessary rewards arriving from England, I collapsed School’s first contribution to the gay to induce creation but would be offset with a viral illness and was effectively civil rights movement was me. by the corresponding substantial price incommunicado. Were it not for the cu- shepherd raimi ’55 decreases in what were previously riosity of a passing colleague (who as- New York City copyrighted and patented works. sured me that I looked like death and HLS Professor Steve Shavell has irritatedly but blessedly fetched me a HAVE TIMES CHANGED FOR GLBT published an interesting analysis of bowl of soup), I might well have died. STUDENTS AT HLS? such a proposal (Shavell & van Yper- Some attempt at welfare concern (but as a gay graduate of HLS (’88), I sele, 44 J. L. & Econ. 525, 2001), and perhaps that has been reformed) as read with interest your article “Coming

2 harvard law bulletin summer 2004 out Party,” describing the first-ever re- Thus, I continue to wonder: Why is COUNSEL DID NOT PROTECT FREE union of gay, lesbian, bisexual and HLS so different? What is it about SPEECH RIGHTS transgendered graduates. Finally, I HLS’s institutional culture that contin- the spring issue included a profile of thought, perhaps HLS is becoming a ues to inhibit the GLBT faculty from Michael Hess ’65 that contained the fol- friendly place for GLBT students. identifying themselves, to other col- lowing: “In the late ’90s . . . as corpora- Yet I searched the article in vain for leagues and to students? And, I further tion counsel for New York City, Hess the mention of some faculty involve- wonder, how many students continue restricted a Ku Klux Klan rally and a ment. I am now a law professor myself, to feel, as I did 16 years ago, that at its Million Youth March that, according to and I know that faculty visibility is a foundation, HLS pays little more than him, would have created chaos. ‘But key first step to create both an intellec- lip service to equality on the basis of their right to speak was still protected,’ tual and emotional home that is wel- sexual orientation? he said.” coming to GLBT students. When I was colin crawford ’88 Mr. Hess’ characterization of his ac- at HLS, it was a time when most of us Atlanta tions with respect to the Million Youth (me included) would not appear in the March is nearly the opposite of what yearbook for fear of negative career ON THE COURT, HLS HOLDS FIRM really happened. In two consecutive consequences. This was a choice the AGAINST FLAG AMENDMENT years, 1998 and 1999, Mr. Hess tried to appropriateness of which was affirmed your report on Professor Richard prevent the Million Youth March from by faculty behavior. When I and others Parker’s testimony in favor of the Flag occurring at all, and the march’s orga- approached faculty we knew to be gay Protection Amendment (Spring 2004) nizers repeatedly had to obtain federal (because of mutual friends, for exam- reminds me of the contrary role of court injunctions. Those courts repeat- ple), the closet—and office—doors Harvard Law School graduates in the edly held that the denials of events per- were politely but firmly closed in our flag cases of Texas v. Johnson, 491 U.S. mits violated the First Amendment. faces, with nary an acknowledgment of 397 (1989) and United States v. Eich- (See Million Youth March, Inc. v. Safir, our shared GLBT status. man, 496 U.S. 310 (1990). In both dis- 18 F. Supp. 2d 334, S.D.N.Y. 1998, 155 F. After I read the article, I in fact went cussions, the four HLS graduates, 3d 124, 2d Cir. 1998, finding that the city to check the list of openly GLBT facul- across the spectrum from Scalia to violated the First Amendment by ty published in the Association of Kennedy to Blackmun to Brennan, denying a permit for the summer 1998 American Law Schools directory. To held that flag desecration laws were event; Million Youth March, Inc. v. my great disappointment, HLS re- unconstitutional. As I recall, the pre- Safir, 63 F. Supp. 2d 381, S.D.N.Y. 1999, mains sadly behind the curve: Despite sumed ideological confusion was never finding that again the city violated the one of the largest tenured and tenure- explained in terms of a common legal First Amendment by denying march track faculties in the nation, the sole education. permit for summer 1999 event.) tenured or tenure-track faculty mem- In those days, the Harvard bloc I worked on the 1998 case as a vol- ber listed is Professor Janet Halley, a needed the vote of Justice Marshall. To- unteer for the New York Civil Liberties 2000 hire and a national expert on sex- day we command a majority, assuming Union and remember well Mr. Hess’ ual harassment and sexuality law. By that Justice Ginsburg forgives the high-volume, virtually screaming, ora- contrast, Yale Law School boasts twice school’s unjustified refusal to award tory in the courtroom. Such antics bore as many openly GLBT tenured or her a degree. no relation to his present effort to por- tenure-track faculty as Harvard. spencer ervin ’59 tray himself as a wise elder statesman And Yale is not unusual: I am one of Bass Harbor, Maine of the law who, in his profile, offered three openly GLBT tenured or tenure- such bromides as “it’s very important track faculty at Georgia State, a rela- for a lawyer to remain very rational WE WANT TO HEAR FROM YOU tively small law school in the socially and stay calm.” conservative South. In November, The Harvard Law Bulletin welcomes This history is too recent and too Georgians will likely vote to adopt a letters on its contents. Please write to well-documented for Mr. Hess to re- constitutional amendment banning the Harvard Law Bulletin, 125 Mount characterize himself as a champion of same-sex marriage, while same-sex Auburn St., Cambridge, MA 02138. Fax the Constitution rather than just an- couples will have married in Massa- comments to 617-495-3501 or e-mail other bureaucrat who violated the chusetts. This contrast underlines how the Bulletin at [email protected]. First Amendment rights of those dis- striking it is that HLS evidences the edu. Letters may be edited for length liked by his political patron. conservativeness it does with respect and clarity. scott moss ’98 to sexual orientation diversity. New York City

summer 2004 harvard law bulletin 3 Student Snapshot Sharon Kelly ’04 worked for Howard Dean’s campaign during the Iowa cau- Hearing the Call cus season. Presidential race inspires student to go the distance

sharon kelly ’04 smiles when she recalls meeting a She played a similar role for the Bill Bradley campaign in teenage girl who’d asked her mother for a birthday present: New Hampshire and elsewhere four years ago. And, though to drive her hours and hours across the plains of Iowa to a neither candidate won, she doesn’t regret the experiences. town hall meeting of a presidential candidate. She endured 14-hour days, illness, bad food and long car That’s why Kelly’s still an idealist when it comes to the drives, but what she’ll remember are the people whose sometimes rough-and-tumble world of politics. The people passion for her candidate brought them into the political in it, she says, are committed and the best kind of co-workers process. to have, and they inspired her to travel more than 1,000 “I’ve never seen anything like Iowa, with the amount of miles away from campus to work on behalf of the Howard people who seemed to have left their jobs or left school to Dean campaign during the Iowa caucus season. come out and volunteer,” Kelly said. “You’d hear stories all One of many HLS students who put in the hours to the time about a family coming from Georgia, and their car support their candidate, Kelly worked on Dean’s advance broke down, and they bought a new car and kept going.” team, ensuring that sites the former Vermont governor She’d work for a campaign again. But next time, she visited were photogenic for the TV cameras and trouble-free. hopes, she’ll get to use her law degree too. P

4 harvard law bulletin summer 2004 Ask the Professor Duck Bind What Should a Justice Do?

justice antonin scalia ’60 went duck hunting with Vice President Dick Cheney three weeks after the Supreme Court agreed to hear Cheney’s appeal of a lower court order that he turn over records of the closed energy task force meetings he held in 2001. Later, amid calls for him to recuse himself, Scalia said, “It’s acceptable practice to social- ize with executive branch officials when there are not personal claims against them.” (He added, “Quack, quack.”) Before the case was heard in April, we asked Professor Professor Andrew Andrew Kaufman ’54, a former Kaufman ’54 is a former member of the advi- member of sory committee on ju- the advisory committee on dicial ethics in Mas - judicial ethics in sachusetts, what he Massachusetts. thought Scalia should do, and he didn’t duck the question: “If you are asking me how I would advise Scalia, I would say that he should not sit. It is the combination of Scalia and Cheney spending a fair amount of time together in a social and nonpublic setting and the nature of the case, where the issue does not involve naming Cheney a party in some formal, almost technical way. The case has a political setting in which the plaintiffs are seeking information about the meetings of the energy task force that Cheney convened, apparently with heavy energy industry participation, and Cheney is resisting making any disclosures about those meetings. His own personal official conduct is at issue, and so this is quite different from situations to which Scalia has referred as justifying his conduct—such as the official annual visit of the Supreme Court justices to the president. As a former law professor, Scalia ought to be able to see the distinction between those types of situations.” P photographs by kathleen dooher summer 2004 harvard law bulletin 5 On the Bookshelves

Darkness Visible Professor David Kennedy ’80 is director of the The Costs of International Humanitarianism European Law Research Center at HLS. in his more than 20 years working and teaching in the field of international law, Professor David Kennedy ’80 observed something he thought no one was talking about—the negative consequences of good intentions. Kennedy discusses his book on the topic, “The Dark Sides of Virtue: Reassessing In- ternational Humanitarianism,” published by Princeton University Press this spring.

Why do you want readers to think about the possible dangers of international humanitarianism? Humanitarian voices are increasingly powerful on the international stage— often providing the terms through which global power is exercised, wars planned and fought. To be responsible partners in governance, humanitarians must understand and acknowledge the costs, as well as the benefits, of their ideas. I think my main interest in writing the book was to draw attention to the unrecognized costs of well-meaning ventures. It’s not that international humanitarian efforts only have dark sides. It’s that too many of us who have been involved in this work underestimate the long-term difficulties and the side consequences of our best-meaning efforts. For example, if you get a Caribbean country to abolish the death penalty in the name of human rights, you might also make a government that incarcer- ates people under terrible conditions more legitimate. It’s very easy to sign up for human rights conventions, not follow them and still use them as a jus- tification for all kinds of other governmental mischief. It’s those secondary effects that are so rarely taken into account by humanitarians.

6 harvard law bulletin summer 2004 Why is it particularly relevant to look at justify warfare, particularly in the case right, rather than a social service or a these dangers now? of Iraq. My sense was that a focus on community activity. But in many places Well, I think I was pushed to write the multilateralism and on the United Na- there are alternatives: religious vocab- book by the increasing use of a human tions as a focal point for opposition to ularies, vocabularies of solidarity rights and humanitarian vocabulary to the Iraq war was mistaken. The Iraq based on union or labor activities. war would not have made any more There are lots of examples at the local sense had it been approved by the Unit- level of human rights advocates finding ed Nations apparatus. The focus on the themselves the dominant players in war’s compatibility with the UN Char- settings where their approach is very ter made it more difficult for those who inappropriate. were opposed to the war to get their minds around the idea that it might Are you talking about Western human make good sense to change regimes in rights activists acting abroad? the Middle East in the direction of It is worrying that humanitarianism democracy, and to have a sincere de- has so often been a one-way street—the bate about whether the military was center criticizing the periphery. But I the right way to do it, whether Iraq was do not think it is illegitimate for some- the right place to start. body from the United States or Western Europe to try to bring about change Although you explore problems with the elsewhere in the world. We’re already human rights movement, do you feel the engaged across the world all the time— good it’s done outweighs the harm? the question is how do we do it. With There is no question that the interna- what range of tools? With what sense tional human rights movement has of our own responsibility? done a great deal of good. It’s been responsible for freedom and an improved How has the human rights movement been quality of life for many people, and it used by governments to justify the use of has established standards by which force? governments judge one another and It’s difficult for humanitarian profes- judge themselves. It has cast light on sionals to acknowledge that one can catastrophic conditions in bomb for human rights. We say prisons around the world. All our vocabulary is being mis- that is true. My worry is sim- used when President Bush cites ply that we mistake work on human rights to justify policies the human rights movement we oppose. But when we do for work on the problems of that, we fail to take responsibil- justice and emancipation. ity for the effects that we have More human rights is not al- as human rights practitioners. ways the right answer. Indeed, the Humanitarians have worked for years most significant challenges for the hu- with military professionals to make the man rights movement in the years law of war a user-friendly blend of hu- ahead will be to address problems manitarian standards like “proportion- which are difficult to formulate as ality” and military standards like “effi- rights claims—collective problems, eco- ciency” and “necessity.” We shouldn’t nomic problems. be surprised when the military or the political leadership then uses this vo- You write about human rights approaches cabulary to legitimize the use of force. crowding out other kinds of solutions. It’s completely in line with what we’ve What’s an example? been intending in developing it. In In the field of health care, it’s particu- short, we need to understand ourselves larly dramatic: the attempt to frame the as participants in governance, rather need for drugs or health as a human than simply as critics.P

photograph by kathleen dooher harvard law bulletin 7 Faculty Viewpoints On the 50th anniversary of Brown v. Board of Education, how do you predict Good ridge will be thought of in half a century? A Marriage Contrast PROFESSOR LAURENCE TRIBE: I would expect Goodridge at mid-century will Two professors, two takes on the look very much like the California Massachusetts gay marriage ruling Supreme Court’s pathbreaking 1948 ruling on interracial marriage looks today: like a decision that prefigured The Massachusetts Supreme Judicial Court things to come.

decision in Goodridge v. Department of Public PROFESSOR RICHARD PARKER: How Health last fall has allowed gay marriage in the Goodridge is thought of 50 years from now will depend on what happens in commonwealth—at least for now. The ruling the meantime. In 50 years, gays and lesbians may has been hailed by some as courageous and be (I hope) fully integrated into the lambasted by others as judicial activism. The American community. Same-sex marriage may be legal in every state. That Bulletin asked two HLS constitutional law future is eminently imaginable. It is in keeping with the narrative of one-way experts, Laurence Tribe ’66 and Richard “progress” that we sometimes tell our- Parker ’70, for their views. selves as if it were a law of history. If that is what happens, Goodridge may

Professor Laurence Tribe ’66 has argued before the Supreme Court on the issue of gay rights, in particular in Bowers v. Hardwick, in which a gay man’s conviction for sodomy was upheld. Last year, in the decision that overturned Bowers and legalized gay sex in all 50 states, Tribe contributed an amicus brief. Professor Richard Parker ’70, who has criticized the SJC decision on gay marriage on the grounds that it subverts the democratic process, is author of “Here the People Rule: A Consti- tutional Populist Mani- festo,” published by Har- vard University Press. very well be celebrated as the crucial notion that court mandates, by them- “went too far too fast”? What if it is step between here and there. It will be selves, “disentrench” the political sta- widely experienced as imposing the mainly lawyers, though, who celebrate tus quo or “catalyze” political change values of a privileged, unelected minor- it as such. isn’t just a self-serving mistake. It nur- ity on a majority? What if a powerful We lawyers often “forget” that it is tures a perverse idea that it is the very “backlash” movement develops, as the politics that drives and legitimates mission of courts to act “heroically” by right-to-life movement developed after changes in the law, not vice versa. At doing unpopular things—defying pub- Roe? What if, in response, barriers to bottom, even judge-made law is in and lic opinion or coercing it. The idea is gay and lesbian equality are set up by of politics. Its success is not a matter of perverse because it is antidemocratic state or federal legislation or constitu- hurling a lightning bolt from “above.” and because it tends to be self-defeat- tional amendments? Might not Good- To take root and effect it must have, or ing. Today, some who celebrate Brown ridge be fingered, then, as the crucial soon win, popular support. Thus it is— misrepresent it by wrapping it in a sto- step between here and there? If so, and should be—tethered to democratic ry of judicial “heroism.” They thus its significance might again be exagger- politics. Political actors—whether a mislead those who are inspired by ated. But no more so, surely, than president, a legislature or a court— Brown. It may be that some such judi- in the other story, the story of court- must draw on, and participate in, a cial triumphalism influenced the ma- driven “progress.” typically gradual process of public per- jority in Goodridge—and this miscon- There’s another dimension, then, on suasion. The 50-year struggle over “en- ception may turn out, in the end, to which Goodridge might be remem- forcement” of Brown illustrates the affect its fate. bered. It might be remembered as em- point. The same will hold true for One thing you know about politics blematic of a period in which self- Goodridge ... in the event that it is, in is that you never know, for sure, what styled legal “progressives” lost touch fact, counted a “success” in 2054. is going to happen. What if—as a mat- with the lessons of legal realism and More than a realistic estimation of ter of political preparation and tim- the values of majoritarian democracy. judicial influence is at stake here. The ing—Goodridge “came too soon” or Its formalist rhetoric is at odds with photographs by kathleen dooher summer 2004 harvard law bulletin 9 Faculty Viewpoints

the open, controvertible argument of ly important. At bottom, both were the consensus as its California precursor Brown. The peremptoriness of its claim innocent victims of a bigotry born of had. to find something radically new in fear, hammered into hate, ignited by Nor is there much to the argument generic abstractions of a state constitu- rage and, in the end, enacted as death. that the mixed-sex character of the tion without much attention to any- When I’ve compared the ban on in- marital unit simply “feels” more deeply thing in particular about that constitu- terracial marriage that the U.S. woven into the “marriage” concept it- tion or that state—along with the Supreme Court didn’t strike down until self than could ever have been said sloppiness, even the cynicism, of its 1967 with the ban on same-sex mar- about the same-race character of a supposedly value-neutral “rational ba- riage, I’ve sometimes been told that I’m marital unit. In December 1912, when sis” standard of review—looks disin- mixing apples and oranges because the Representative Seaborn Roddenbery of genuous enough now. How will the laws against so-called miscegenation Georgia proposed a constitutional opinion look once the drama of the mo- reflect the view that persons of amendment to uphold the sanctity of ment has passed? Its tone of righteous African-American descent are inferior marriage—an amendment that would command-and-control and its disre- and would pollute the proud genetic have said “Intermarriage between spect for electoral and legislative poli- heritage of the Aryan race, whereas the Negroes or persons of color and Cau- tics—its too easy willingness to attrib- refusal to recognize same-sex unions as casians … is forever prohibited”—he ute irrationality and prejudice to forms of marriage need cast no asper- spoke in terms that should make pro- people embracing a traditional idea of sions on gays when it merely reflects ponents of a federal marriage amend- marriage—are startling enough today. the basic nature of things. We’ve all ment, designed to overturn decisions Might it seem, in 50 years, as arrogant heard the mantra: “It was Adam and like Goodridge and to prevent their ilk as the antipopular prejudice of an 18th- Eve in the Garden of Eden, not Adam from seeing the light of day again either century aristocrat? and Steve.” under any state constitution or under It’s not too soon, now, to turn a cool Of course, from Steve’s perspective, the U.S. Constitution, feel right at eye on Goodridge, however much we being told that it’s not enough for him home. The Roddenbery Amendment believe in the justice of its mandate. and Adam to love one another and to was said to be necessary to “extermi- Even those who assume an inevitable commit to one another until death do nate now this debasing, ultrademoral- Onward March of Equality ought to them part because Steve is a gay male izing, un-American and inhuman lep- think about it twice, so long as the rather than a straight female (and that, rosy.” Such “marriages” were that in March, in their mind, includes political in such circumstances, Steve and name only to Mr. Roddenbery. They equality—which is to say, one person, Adam will just have to be content—at were, in truth, “abhorrent and repug- one vote; which is to say, majority rule. best—with something called a “civil nant” counterfeits of the “sacred mari- union”) must feel like Eve’s being told tal estate.” In 1948, the California State Supreme she can’t marry Adam either because I don’t want to overstate the parallel. Court was the first state high court to de- she’s white and Adam is black—noth- No doubt some who have nothing clare a ban on interracial marriage uncon- ing against her as a white woman, you against gays or lesbians and who stitutional, despite strong public opposi- understand; after all, the rule is no less wouldn’t mind learning that their sons tion. How does the Goodridge decision a restriction on the liberty of black were gay or their daughters were les- compare? men. bians—people who don’t want to force TRIBE: To 14-year-old Emmett Till, a Some, ignorant of history, say that, anybody back into the closet and who’d black boy lynched and murdered in when California’s highest court saw be happy to accord same-sex couples Mississippi in 1955 because he had through the phony symmetry of the civil unions possessing every legal inci- dared to say “Bye-bye, baby” to a white ban on interracial marriage in 1948, a dent of marriage—simply balk at ex- woman, and to 21-year-old Matthew great majority of the nation’s electorate tending the “M” word to a relationship Shepard, a gay white boy robbed, beat- had already come to the same conclu- they think is neither better nor worse en senseless, and then tied to a fence sion, so the court wasn’t making new than marriage, simply different. But and left to die in Wyoming in 1998 for law so much as it was ratifying an ex- the issue isn’t resolved by good inten- being gay, the differences between the isting consensus. But the truth is that, tions, which we all know can pave one history and structure of white su- as late as 1958, polls reported more hell of a nasty road. Decisive is the fact premacy from chattel slavery to the than 95 percent of whites still disap- that, intended or not, the signal sent to Black Codes to Jim Crow, and the struc- proving of marriages between blacks the same-sex couples who are relegated ture and history of homophobia, gay- and whites. If anything, therefore, the to the “separate but equal” status of baiting and gay-bashing weren’t awful- SJC hasn’t ventured as far beyond the civil union is that their relationship is

10 harvard law bulletin summer 2004 Courts, I think, at best a facsimile of the real thing: a should push only on good copy, maybe, but ultimately fake. doors that are ajar, Using a state’s legal system to deliver such a signal of second-class status is that the people are inconsistent with the most basic ax- already prepared to ioms of equal citizenship. pass through.” —Richard Parker ’70 PARKER: Again, this question suggests judicial-triumphalism. Being “the first” to do something which is analogized to something “first” done by a state court combating racial oppression, some- Was the law that the court attacked al- legislatures repealed antimiscegena- thing that ultimately won out to be- ready politically weak enough to allow tion laws. By the time Loving was final- come the law of the nation, certainly for judicial success? Was public opin- ly decided, interracial marriage was al- sounds good. In the Goodridge opinion ion ready to entertain, then embrace, ready permitted in two-thirds of the itself, the analogy to antimiscegenation the judicial mandate? Courts, I think, states. laws is waved like a flag to be followed should push only on doors that are Now, contrast Goodridge. No state into battle. What if we look at it as an ajar, that the people are already pre- permitted same-sex marriage—or ever argument rather than a flag? Shouldn’t pared to pass through—not on doors had. There was no history of non-en- we consider whether to distinguish a that, for the moment, are firmly shut, forcement of the traditional limitation supposed precedent before jumping to much less ones that may well be locked on marriage. Two courts, in Hawaii follow it in a very different context? in response to an unexpected judicial and Alaska, pushed at the door, tenta- What I have in mind is not a com- push. tively, in the last decade. These initia- parison, on the facts, between degrees Consider the situation facing the tives were quickly repulsed by the vot- of oppression of African-Americans, California court. In 1948, interracial ers of each state—locking in new on one hand, and of gays and lesbians, marriage was already permitted in barriers to same-sex marriage—and on the other. Nor is it a comparison be- more than one-third of the states. The then resisted by further state and fed- tween the significance of barriers to decision to permit it had been made by eral legislation. Was there reason to be- marriage in the two contexts. Though legislatures, not courts. Among the re- lieve the people of Massachusetts were there are differences along these lines, maining states, California’s antimisce- more prepared, in 2003, to embrace and though none were addressed by genation law was unique—uniquely same-sex marriage than the people of the Goodridge court, what I have in weak. It attached no criminal penalty Hawaii a few years before? I doubt it. mind, instead, is a comparison between to interracial marriage, and according What’s more, the Massachusetts the decision in Goodridge and the Cali- to a historian, it was “already largely court lacked a vital resource of consti- fornia decision in Perez—and ultimate- eviscerated in practice.” Indeed, one tutional argument that had been avail- ly the U.S. Supreme Court decision in justice concurring in Perez went so far able to the California court. In 1948, Loving—as political decisions, political as to invoke the “attitude of compara- suspicion of racial discrimination was actions. tive indifference [to miscegenation] on well-established in American constitu- This kind of comparison is the most the part of the [California] Legislature” tional law. The Perez opinion invoked difficult. The reason is that politics is and “the absence of any clearly ex- it. There is, to this day, no well-estab- more complicated than logic or even pressed public sentiment or policy lished suspicion of discrimination by social history. It calls for context-sensi- [about it]” along with “strong indica- sexual orientation. Goodridge was left tive judgments of strategy and tactics, tions of legislative intentions which to put its emphasis on the importance an assessment of preparation and tim- point the [other] way.” of marriage—which played into the ing, of what resistance may be antici- The U.S. Supreme Court, then, wait- hands of its critics whose condemna- pated and overcome, what popular ed two decades to confront the issue. It, tion of the decision proceeded from just support gained, by what actions and too, pursued a path of political caution the same premise. arguments, and when. I don’t know and respect for majority rule. It, too, There was available, of course, an enough about California in 1948 to did not defy democratic politics. It alternative. The Supreme Court of Ver- make a satisfactory comparison. But I waited to follow it. Between 1948 and mont had taken an incremental step, know a little, and I know the standard 1967—while Congress moved to prohib- requiring the institution of civil against which to make the comparison: it racial discrimination—many state unions. That ignited a political struggle

summer 2004 harvard law bulletin 11 Faculty Viewpoints

but seems to have stuck. You might the options open to any particular of that status. These couples are saying think the Massachusetts court would oppressed minority. that, if marriage as an institution is un- have opted to follow Vermont. (Even der siege, the reason is less likely to be the Netherlands, the first country to PARKER: Since the life of the law is (and same-sex marriage than casual adul- legalize same-sex marriage, had begun should be) democratic politics—not tery and easy divorce and the many by instituting civil unions.) But no. logic—the legalization of other unions pressures that make it tough for mar- What the Goodridge court lacked in will occur only if and when there is ried couples to live by their wedding political warrant for its decision, it widespread popular sentiment favor- vows. If it is under siege, the reason is made up for in self-righteous self-as- ing such an expansion of marriage. I less likely to be gay marriage than the sertion. The risk that seemed to con- don’t foresee that soon, do you? idiotic TV programs that treat mar- cern it most was the risk that some riage as a game-show prize, or than the other court, later on down the road, What’s your reaction to the many gay mar- antics of Britney Spears and others like would be “first.” riages performed in San Francisco and her. other parts of the country, without the law What do you say to those who argue that being changed to allow them? PARKER: Civil disobedience can be good Goodridge could open the door to legaliz- TRIBE: I’m surprised things have moved for democracy—so long as, in breaking ing other unions, such as those between so quickly, with so little opportunity a law, you are calling attention to what siblings or a triad? for people to grow accustomed to one is plausibly an injustice; so long as TRIBE: When confronted with such hy- state’s developments before officials in your aim is to persuade others to potheticals, we need to ask ourselves other states hop aboard the bandwag- change the law you break or one of how plausible is it to imagine the dy- on. To the degree the speed and casual- equal or greater importance; so long as namic generated by discrimination ness with which some of the steps to- you show respect for those to whom against same-sex couples—a dynamic ward gay marriage have been taken your behavior is addressed; and so long constituted by violent intolerance to- might fan the flames of backlash as you accept punishment for what you ward those open about their intimate against the entire notion of gay unions do. relations and by equally devastating and may leave the misleading impres- Disobedience by officials raises a self-erasure by those closeted about sion that Goodridge has unleashed a special issue. You can argue that—be- their sexual orientations—at work in period of chaos that only a federal mar- cause they are agents of law and be- these other, very different, contexts. In- riage amendment to the U.S. Constitu- cause they have other effective ways of cest laws draw circles around individu- tion can stop, I would have preferred promoting its change—they are less als, defining the finite set of family that the relatively low-level officials in- justified in breaking it. If, however, the members so closely tied by blood or volved not take the law into their own official (say, a mayor) was elected and adoption that sexual intimacy becomes hands but rely instead on the methods can be removed from office at the next too dangerous or volatile for society to that are everywhere in place for election, the voters can, I think, apply sanction. These restrictions no doubt launching orderly and speedy chal- whatever additional discipline may be inflict a heavy burden on particular lenges to laws that limit marriage to needed. The same holds, indirectly, for hapless individuals whose misfortune opposite-sex couples. appointed officials who can be re- it is to lust after or to fall in love with a That said, I do admire the daring moved by elected officials. family member, but such tightly drawn and the spirit that these gay marriages The hard case involves an appointed circles bear no real resemblance to the represent. Unwilling any longer to re- official who is not term-limited and not broad lines cutting oppressively across main even partly closeted, the couples responsible, directly or indirectly, to society to rule half the adult population involved in these unions are saying to the people—a category that includes off limits as sexual or marital partners the world that a legal system illegiti- judges in Massachusetts. Whether ju- for a distinct and despised minority. So, mately denies their equal worth and dicial “interpretation” may cross a line too, the circles that our adultery and dignity when it announces that, how- and become a sort of civil disobedience bigamy laws have drawn around mar- ever deep and exclusive their mutual is a good question. Whatever the an- ried couples have established parti- commitment may be, and however per- swer, the question suggests the value of tions that fall with an undeniably cruel manently they intend to remain togeth- judicial term limits and elections as weight upon individuals who fall in er, they cannot have in law what my well as more streamlined processes for love or lust with someone else’s spouse. wife and I have had these past 40 years: correction of far-out “interpretations” But these laws likewise cut no wide a civil marriage and not merely some by legislation and constitutional swath through the population to limit second-class facsimile or simulacrum amendment.

12 harvard law bulletin summer 2004 To amend the nation’s basic charter in order What about consequences, such as the possibility of constitutional amendments to deny the status of defining marriage as a union between one marriage to same-sex man and one woman? TRIBE: Some of the proponents of such couples ... would be to amendments are undoubtedly sincere, turn our backs on the but others—notably including Presi- dent Bush—seem to me to be playing core principle of equal with constitutional fire for largely po- dignity.” litical reasons rather than because they —Laurence Tribe ’66 truly see a national problem that only an amendment could fix, and I suspect that the fire may end up consuming by a bloody civil war and by the three I have enough faith in Congress to those who ignite it well before it burns constitutional amendments surround- believe that it will not send such an up so basic a part of our constitutional ing that war; and comic in the instance amendment to the states for ratification heritage as the principle of equality un- of prohibition, which was written into by the requisite two-thirds vote of each der the law. A federal marriage amend- the Constitution through the foolish house, and enough faith in the Ameri- ment, whose most enthusiastic advo- 18th Amendment, which led to the can people to believe that, if I am cates certainly wouldn’t be satisfied speakeasy and to a steep rise in orga- wrong about Congress, then sanity will until they had limited the ability of the nized crime and in cynicism about the return before 38 state legislatures have states to recognize even civil unions law, and which was repealed in the 21st given this blot on our Constitution with legal incidents similar to those of Amendment. their blessing. marriage, would represent a massive Particularly ironic as a proposal retreat from the direction in which our coming from many who otherwise PARKER: In response to Goodridge, con- Constitution has until now evolved: to- champion states’ rights, a federal mar- stitutional amendments may be enact- ward ever broader inclusion within the riage amendment would go beyond ed to lock a door that should not be— circle of equal citizens, embracing first preventing states from exporting gay and need not have been—locked. Given people of color (1870), then women marriages to other states—hardly a Goodridge, however, the amendment (1920), then those unable to pay a poll danger in need of prevention inasmuch process is the appropriate recourse of tax (1964) and, most recently, those old as marriages, unlike judgments and de- democratic politics. enough to be drafted to fight and die crees, have in any event never been It is a mistake to focus, now, on for their country because they have held entitled to “full faith and credit” in amendment of the U.S. Constitution. reached age 18 (1971). To amend the na- states whose public policies they of- The real purpose would be to pre-empt tion’s basic charter in order to deny the fend. Much more difficult to reconcile a U.S. Supreme Court decision like status of marriage to same-sex couples, with axioms of federalism, such an Goodridge. But I can’t believe that even even in a state whose highest court amendment would prevent states from the current justices will soon impose finds the right to such equal status in enshrining in their own constitutions, same-sex marriage on a nation plainly its own constitution, would be to turn or reading in the existing language of not now ready for it. our backs on the core principle of equal those constitutions, the principle of For the moment, it is in state politics dignity. And it would do so by includ- equality for same-sex couples that the that this issue should (and will) play ing in the Constitution not the kind of SJC found in the Constitution of Mas- out. In Massachusetts, the process will provision for which it has traditionally sachusetts. Such an amendment would go forward despite the provisional fait been reserved—a provision about the repudiate the central principle of the accompli presented to the people by the structure of our governing institutions federal structure, enshrined in both the court. In other states, where a decision and about the limits of government Ninth Amendment and the Tenth, that like Goodridge may be in the cards, the power vis-à-vis the individual—but the each state is free, so long as it does not matter should be put to the voters kind we have placed in the Constitu- violate any federal right or privilege in sooner rather than later. No one can be tion only twice, each time with tragic or doing so, to endow its own citizens sure of the outcome. But the issue, hav- comic results: tragic in the instance of with rights broader and deeper against ing been raised, even if raised too soon, slavery, which was stitched, although that state than they enjoy as citizens of must now be resolved where every im- never quite named, into the fabric of the United States against the national portant issue must ultimately be re- the Constitution of 1787 and dissolved government. solved—at the ballot box. P

summer 2004 harvard law bulletin 13 In the Classroom Assistant Professor Ryan Goodman discusses the legality and legitimacy of military The Laws of War intervention.

in april, during one of the most vio- and what to do when force may be ille- war in Iraq were illegal, then the no-fly lent periods of fighting in Iraq since the gal yet legitimate. zones that protected the Kurds in the fall of Saddam Hussein’s regime, Assis- Goodman noted that the answers north and the Shiites in the south were tant Professor Ryan Goodman’s Public are never as clear as they may seem also illegal. International Law class struggled to and often have unintended conse- When Goodman discussed whether determine when the use of force is legal quences. For example, he said, if the the rules of war should be more or less restrictive for humanitarian intervention, one student expressed his dismay at the prospect of fewer restrictions: “I think it’s a very pernicious development. ... The notion that military plan- ners may sacrifice lives on the basis of who they are fighting is foreign to me.” But after a discussion of the U.S.-led wars in Iraq, the NATO bombing of Kosovo and West African military operations in Liberia, the class concluded that the use of force is often simultane- ously illegal and legitimate, a troubling dichotomy for international law advocates as well as law students. P

14 harvard law bulletin summer 2004 photographs by nubar alexanian THE INTELLECTUAL PROPERTY ISSUE >>INTRODUCTION

‘THE WHOLE WORLD IS INTERESTED IN INTELLECTUAL PROPERTY RIGHT NOW’

when Harvard Law School first opened its doors in 1817, the U.S. Patent and Trademark Office was only 15 years old, copyright law was less than 30 years old and trademark law didn’t even exist. Not surprisingly, there were no IP classes. Today, the law school offers nine courses that cover intellectual property. And faculty and students tackle real-world problems, from helping K-12 students get access to textbook content when copyright law gets in the way to finding solutions to the crisis over music downloading. This issue of the Bulletin looks at the … and, like never before, state of intellectual Harvard Law School is property law and showing students how showcases the HLS people and programs that are IP law works shaping its future.

summer 2004 harvard law bulletin 15 16 harvard law bulletin summer 2004 UP by I elaine m HLS professors propose solutions tomusic ON DOWNLOADING the recorded music industry sense their business iscoming apart at the seams. The filmindustry—a much larger entertainment industry iswatching them closely. full-blown crisis. Onthat, atrioofcolleagues at HLS’s Berkman Center for Internet &Societyagree. devastatedits revenues by Jonathan Zittrain ’95—part ways. And, asthey debate and challenge proposed solutions, the increasingly beleaguered industry crisis industry “People are desperate for answers and thinkingonthis,” says Zittrain.Adds Fisher, “Almost allofthe players in But what todo? That’s where the threeHLSprofessors—William “Terry” Fisher III’82,Charles Nesson ’63 and c ardle photographs by illegal music downloading and copying, the music industry isstruggling witha joshua paul summer 2004 harvard law bulletin 17

THE INTELLECTUAL PROPERTY ISSUE industry—wants to avoid the same fate.” Consumers, artists ed. At its extremes, Total Control wants to build encryption and technology manufacturers also have much to lose. “There into hardware that would refuse to run unrecognized or ille- are a lot of people with something at stake in figuring out a gal programs. (Indeed, the entertainment industry has even solution,” Fisher says. considered such extreme measures as creating viruses that For that reason, the proposals emerging from the Berkman would erase the hard drive of any computer that attempted il- Center are attracting enormous interest. A conference in Sep- legal downloading.) tember sponsored by the center drew representatives from Mi- Not only is there serious skepticism about whether it’s tech- crosoft and Intel, among others. In November, Nesson and nologically possible to prevent piracy, but the approach rais- Fisher met in Los Angeles with executives from a number of es concerns about destroying the openness and flexibility of movie studios as well as the head of the Recording Industry the Internet. Yet Nesson predicts that Microsoft, for one, will Association of America. In April, Nesson hosted a conference make a huge push for it; moreover, he believes Total Control at HLS, which included a select group of scholars, artists, en- has a greater likelihood of success than Fisher’s tax scheme. In gineers, lawyers and businesspeople. And the proposals in the gap between those two extremes stands Speed Bumps. Fisher’s forthcoming book, “Promises to Keep: Technology, “It’s actually going to be interesting if the Total Control mod- Law, and the Future of Entertain- ment,” which is excerpted on his Fisher’s plan has gotten the most attention—and may Web site and slated for publication in August, have already received significant notice in The Wall Street Journal, The New el looms in a realistic way in the future,” Nesson says. “Then I York Times, Los Angeles Times and The Economist, as well think we may see a lot of movement on the side of those who, as various online journals. at the moment, turn up their noses at Speed Bumps. Sudden- “It’s gotten a lot more attention than anything [else] I’ve ly, reforms of the existing system won’t seem as bad, I think.” written,” he says. So what exactly are their suggestions for solving the pira- Taxes for Artists and Producers cy problem? Fisher offers a radical plan that would replace the Fisher’s tax scheme, he acknowledges, is the most radical of copyright system with a government-administered compen- the proposals. For that reason, it has gotten the most atten- sation plan, funded by a tax on hardware and other systems tion—and may also be the hardest to sell. used to play digital music. Downloading and copying would Under his plan, it would no longer be illegal to copy digital be legal, but artists and producers would still make money. entertainment without permission. The owner or owners of a Nesson’s model, which he calls “Speed Bumps,” tries to im- copyrighted work—including artists and producers—could prove the legal commercial market by making downloading choose to register the work with the U.S. Copyright Office, cheap and attractive while diminishing the quality of illegal downloading. Zittrain isn’t proposing a solution of his own but has worked with the other two to hone their proposals. “At the core,” Zittrain says, “Terry’s and Charlie’s ideas meet—both anticipate a situation where people are paying money on a bulk subscription model.” While Fisher’s model embeds these fees within Internet service provider subscrip- tions, blank CD sales and other existing digital expenses, Nes- son’s would push people into a fee-based system like iTunes by making it more difficult to use peer-to-peer networks. “For straight music consumption, they’re really arriving at the same thing,” Zittrain says, “though Fisher’s plan anticipates that consumers can create their own new works using others’ old ones.” For his part, Zittrain isn’t convinced the status quo is untenable. For one thing, he says, the liability of ISPs for fa- cilitating peer-to-peer transfers is “surprisingly unclear,” despite broad statutory immunities, and has yet to be battled out in the courts—something the recording lobby is likely to start pushing soon. All three agree on this, though: The entertainment industry’s favored approach, called “Total Control,” should be avoid-

18 harvard law bulletin summer 2004 also be the hardest to sell

Professor William Fisher III ’82 writes about solutions to the music downloading crisis in his forthcoming book, “Promises to Keep: Technology, Law, and the Future of Entertainment.”

summer 2004 harvard law bulletin 19 Professor Charles Nesson ’63 wants to improve the legal commercial market for downloading through his which would provide a unique file name. That file name would Speed Bumps model. be used to track how often the work was downloaded or copied, and the owners would be compensated from a fund administered by the Copyright Office. Funding would come from a tax on ISPs or devices used to gain access to digital entertainment. This system makes room for artists to “rip” and mix from existing works to create new songs, films or other works; both the owner of the original work and the creator of the new one would be compensated on a percentage basis. Other than lawyers, Fisher notes, “pretty much everyone would benefit.” Consumers could download freely and legal- ly with access to a much greater choice of entertainment. Artists and producers would get paid. ISPs and other inter- Nesson takes a carrot-and-stick approach to the piracy problem mediaries such as electronic manufacturers would not be obliged to police consumer use, something they are strongly resisting. Even recording companies would benefit, at least in the short run, although their long-range fortunes are more difficult to forecast, Fisher says. Perhaps as important, the ability to create new art through ripping and sharing existing works would be preserved. “The opportunity for consumers to take materials and rewrite and redistribute them would be much enhanced,” Fisher says. “This is one of the most rapidly developing innovative uses of the new technology. Instead of accepting film and music, you can edit and modify it.” The academic term for this “creative explosion,” as he puts it, is “semiotic democracy.” In that regard, Zittrain shares Fisher’s enthusiasm. “I think an understated benefit to Terry’s proposal is the idea that consumers have the capacity to produce new works based on old works, without displacing the old works,” says Zittrain. “The mixing and production tools on the average PC from Best Buy exceed the most sophisticated recording equipment of the late ’70s. It would be a shame if the law could not evolve to account for the vast new opportunities of content production offered by having these tools in consumers’ hands. Terry’s model allows for it because it suggests formulas by which people can say how much of their work is theirs versus how much they drew from existing works. It is quickly looking forward to a time when consumers can be producers, can be paid and can share. That’s at least a first cut at having the law respect and even provide an economic engine for creation of new works in digital media without economically cannibalizing old ones.” However, within the entertainment industry, at least, Fish- er’s plan is a tough sell. “It seems pretty far out to [the entertainment industry],” says Nesson. “Instead of making money selling things, they’ll be recipients of money from a government agency.” That’s something that also gives Nesson pause. “I’m not disposed to it because, at the biggest level, the end re-

20 harvard law bulletin summer 2004 sult of the Internet revolution is we wind up with a mega-government agency that’s in control of entertainment. That seems to me a net loss,” he says. “I can’t see how anyone could give assurances that such a government agency would not discriminate,” he adds. For example, “I can’t see an agency paying out money to porn.” And, he says, “If there is some other major competitor for funds— like a war or plague—and a big pot of money is sitting there to be paid for entertainment, I don’t see what would keep the government hands-off.” “That’s a legitimate worry,” concedes Fisher. “You’re plac- ing a fair amount of discretionary power in a government agency.” However, the agency would not choose which artists are paid, he insists, because compensation would be based simply on numbers—which works are downloaded the most often. “The principle of consumer sovereignty would remain,” he says. However, he adds, “The total amount of money dis- tributed through the system would be subject to some degree of government discretion. That’s an invitation for lobbying,” he acknowledges. There is also the potential for manipulating the compensation system through what Fisher calls “ballot stuffing.” The owner of a work could artificially inflate his numbers by setting his computer to download his own songs every 15 seconds, for instance. Then there is the problem of cross-subsidies, in which a tax on all ISPs or hardware means consumers who do very little music downloading are subsidizing the heaviest consumers. “These are not fatal flaws,” Fisher is quick to note, “but imperfections in the system. In my book, I discuss ways in which each of these hazards could be mitigated. But in the end, my proposed system is not perfect. None [of the proposals] is.”

summer 2004 harvard law bulletin 21 Zittrain fears the entertainment indus

Assistant Professor Jonathan Zittrain ’95 has been working with Fisher and Nesson to hone their proposals.

22 harvard law bulletin summer 2004 gal downloading through technology called “spoofing” and also increasing the legal penalties for piracy. It also targets the relatively small group of people who take CDs and convert them into MP3s available for downloading for free. “The more attractive the legitimate market becomes in relation to the online black market, the healthier it will be,” Nesson says. “Peo- ple will become sensitive to the fact you’re at risk if you’re putting up a whole lot to share, and that downloading isn’t always easy, and you don’t always get good material.” And, as illegal downloading becomes more common, it will lose its attractive outlaw quality. “The idea you’re participat- ing in a revolutionary community by freeloading will dimin- ish,” Nesson says. Nesson likes the fact that Speed Bumps puts pressure on the entertainment industry to reform. The recording industry, in particular, has an enormous image problem, due to the per- ception that it has overcharged consumers and to its response to the piracy issue, including lawsuits against consumers. It And, as a complete restructuring of the existing system, his also was slow to develop creative solutions to illegal down- proposal faces the biggest hurdles. Copyright law in the Unit- loading. “It took them a long time to come up with iTunes,” ed States typically changes only when all relevant parties he says. But iTunes has been a success because it’s slick, easy agree, he notes. “Studios and record companies are not so sure to use and high-quality—and “beautifully advertised,” he adds. this is good for them. And, of all the [stakeholders], they have Similarly, Speed Bumps encourages the industry to reform by the most political clout.” For that reason, industry reps have charging less for its products and giving consumers more flex- been far more receptive to the Speed Bumps approach. ibility, for example, by allowing people to buy single songs in- “We know they are skeptical,” Fisher says. But “if their sit- stead of entire CDs. uation gets worse, they may have no choice.” The Berkman “This is the approach the industry most naturally favors,” Center, in collaboration with others, is developing a pilot proj- Nesson says. ect of this model, which they hope to implement on a volun- Of Speed Bumps, Fisher says, “If successful, it would facil- tary, subscription basis. “If we can get the demonstration proj- itate the development of an authorized online market.” But, he ect up and running, it may reduce the resistance, if we can show adds, consumers would continue to pay more for entertain- it actually works,” he says. ment than some feel is fair. “There would be some savings but nowhere near as much as the new try’s solution would destroy the openness of the Net technologies offer,” he says. Also, computer systems would most likely include encryption systems to limit “It’s a transformation of the foundation of the record and what could be downloaded or manipulated. As a result, “The film industries, and a change of that magnitude is very hard flexibility and movement across systems are not possible,” to engineer, so I’m not sanguine about the prospects. It will Fisher adds. “So it’s better than distributing music in CDs but take a lot of work.” nowhere near as wide open as distributing it” through his plan. But, Fisher adds, “I’m quite committed to the idea. I think Within the academic community, Speed Bumps isn’t as pop- it would improve life for lots of people.” ular as Fisher’s model, Nesson says: “People in the academic world don’t like copyright—at least, they don’t love it. They feel Speed Bumps it’s been extended way beyond its original concept. I feel that With Total Control at one end of the spectrum and Fisher’s way too. I don’t hold myself up as any great defender of copy- model at the other, Nesson hopes to forge a reasonable middle right.” ground. Through a carrot-and-stick approach, Speed Bumps But both of their plans, and all of the work around digital would support a viable legal marketplace for digital enter- entertainment at the Berkman Center, continue to garner in- tainment while retaining the basic structure of copyright law ternational interest. “The industry is looking for concrete and the open nature of the Internet. ideas,” says Zittrain. “Both Charlie and Terry are doing that.”P Speed Bumps suggests making legal downloading inex- pensive and high-quality while decreasing the quality of ille- Elaine McArdle is a writer living in Watertown, Mass.

summer 2004 harvard law bulletin 23 D

THE INTELLECTUAL PROPERTY ISSUE ISAGGREGATION 24 harvard law bulletin summer2004 by professor williamfisher iii’82 PROPERTY OF INTELLECTUAL THE How thelaws ofintellectual illustration by property have grown— property and grownapart dan page

The following is an abridged version of the speech that Professor William Fisher III ’82 delivered upon accepting the Hale and Dorr Chair in Intellectual Property Law.

over the course of American history, the law of intellectual property has gradually become fragmented into industry-specific subfields. Until now, this trend has been largely inadvertent and uncoordinated. Should it be applauded and pursued deliberately or resisted? I will approach that question circuitously—by first outlining the ways in which the fields of doctrine that together constitute intellectual property law have evolved, and only then considering whether we should strive to disaggregate them.

COPYRIGHT ture.” Laws of nature, mathematical algorithms and There are three main zones of intellectual proper- naturally occurring substances were traditionally ty law: copyright, patent and trademark. Copyright construed to be outside the zone of patent protec- Olaw provides long-term, medium-strength protection. tion for original forms of expression. Copyright During the past 200 years, lawmakers have made originated in a 1790 statute, adopted under the aus- a series of additions to the patent field. For exam- pices of Article I, Section 8, Clause 8 of the United ple, in the 1930 Plant Protection Act, Congress States Constitution. In the first copyright statute, extended special, limited patent protection to asex- Congress protected three kinds of works: books, ually reproduced new plant varieties—like chrysan- maps and charts. themums in new colors, created through radiation. Since then, Congress and the courts cooperated The 1970 Plant Variety Protection Act extended lim- in expanding the set of protected creations. For ex- ited patent protection to sexually reproduced new ample, musical compositions were added in 1831. varieties. Photographs became protected in 1865. (Today, not Judges have played a part in this expansion as only is xeroxing a landscape photograph clearly il- well. In the Parke-Davis case (1911), Judge Learned legal, but even taking a photograph substantially Hand LL.B. 1896 ruled that adrenaline, a purified similar to a photograph someone has previously form of the suprarenal gland, could be patented. taken may give rise to an infringement claim.) Among the many derivatives of this seemingly in- Sound recordings—as distinct from the composi- nocuous proposition is patent protection for genes. tions they embody—were added in 1971. Software Beginning in the 1990s, the Federal Circuit has con- was formally added in 1978. Architecture became sistently upheld patents on purified and isolated subject to copyright in 1990. full-gene sequences whose physiological functions (in other words, the proteins for which they code) PATENT have been identified. Plainly, genes are “naturally Patent law, by contrast, provides short-term, strong occurring substances.” But the courts take the po- protection for inventions. The subject-matter cov- sition that, in Arti Rai’s words, an “isolated gene se- erage of patent law has grown, with a few notable quence … differs from the DNA base pair sequence exceptions, in ways comparable to copyright. that is found on the chromosome in nature,” be- Patents—more specifically, utility patents—are cause it has been disentangled from the surround- conventionally divided into two broad categories: ing “junk” DNA—so called because it has no ap- products (meaning inventions in the conventional parent coding function. sense) and processes (meaning new ways of doing In the 1980 Chakrabarty decision, the Supreme things). Products are, in turn, subdivided into three Court held that a genetically engineered bacterium subcategories: machines, compositions of matter is patentable, announcing broadly that “anything and a residual category called “articles of manufac- under the sun that is made by man” can be patent-

26 harvard law bulletin summer 2004 ed. In 2001, the Court adhered to that position, ruling that new plants could be protected, either nar- rowly under the PPA or PVPA, or broadly using general utility patents. Since the 1980s, a series of court decisions have removed virtually all impediments to the patent- ing of software in the United States, resulting in a steady increase in applications and grants. The Patent and Trademark Office, meanwhile, quietly began granting patents on business methods—like Amazon.com’s one-click online checkout system— which had been considered unpatentable on the ground that they consisted of abstract ideas. When challenged, the PTO’s policy (though not Amazon’s specific innovation) held up in court, leading to a vast wave of filings. In the spirit of a clock striking 13, the PTO has recently issued a few patents on athletic moves—for example, on an unusual In 1980, a competitors. “It Just Feels Right” way of holding a putter. Patents of this is likely too short a phrase to be variety are not likely to survive judicial Supreme Court protected by copyright law, but scrutiny. But they are nonetheless sug- decision Mazda has an exclusive right to gestive of a worrisome trend. use it as a trademark in conjunc- announced tion with cars. Only Levi’s may TRADEMARK place a label on the edge of the Trademark provides potentially perma- broadly that back pocket of a pair of jeans, no nent protection for words and symbols matter what the label says; other that identify goods and services. In the “anything under manufacturers must pick differ- mid-19th century, when it first emerged the sun that is ent places. from the murk of the common law of un- Eventually, companies began fair competition, trademark law shield- made by man” to receive trademark protection ed only marks that included the name of for things that seemed less like in- the person or company that sold some- can be patented. signia and more like the products thing. Bit by bit, the kinds of things that or services they were selling. Con- could be protected against competitors expanded. sider the shape of a Coke bottle or the decor of a Originally, just the names of providers of services Mexican restaurant—the color scheme of the could be trademarked; later, products were added. awnings and the waitresses’ uniforms—both of Services were initially limited to the names of ho- which are shielded against imitation under the tels and newspapers; later, any service could be pro- rubric of trade dress. tected. Arbitrary or fanciful names for products, Trademark law now even covers product con- like EXXON or Kodak, became subject to protec- figurations. The uniforms of the Dallas Cowgirls are tion. Descriptive marks—like Fish Fri for frying bat- shielded, so long as they have acquired secondary ter—also became subject to protection against com- meaning and are not, in the eyes of a court, func- petitors, so long as they had already become tional. Similarly, no car manufacturer is permitted associated in the minds of consumers with partic- to make a car that closely resembles a Ferrari Tes- ular manufacturers. tarossa. A series of nonrepresentational marks were lat- The expansion of the three fields has resulted in er added to the fold. Today, symbols—the Nike increasing amounts of overlap. For example, while swoosh, for instance—may be protected by trade- all computer software programs are protected by mark. Owens Corning is the only manufacturer al- copyright law, a rapidly growing subset (currently lowed to make pink insulation, since the color of its over 100,000) are also protected by patent law. Cer- product is now protected by trademark. Similarly, tain industrial designs—objects that are both use- the sound of the NBC chimes cannot be used by ful and aesthetically pleasing—are potentially

summer 2004 harvard law bulletin 27 subject to intellectual property protections under ernmental involvement in the process of identify- offshoots of all three fields: as copyrightable “use- ing and rewarding good works of art and socially ful objects,” through design patents and as prod- valuable inventions has fueled hostility to govern- uct configurations recognizable to consumers. mental reward systems as alternatives to intellectual property law. The growth of the romantic no- MAKING SENSE OF THE GROWTH tion of authorship and the corresponding No single factor explains why the coverage of intel- celebration of the genius inventor has played a part. lectual property law has been expanding so steadi- The groups favored by most extensions of intellec- ly. Rather, several intertwined forces—economic, tual property have been highly concentrated, while political and ideological—appear to be at work. the groups disfavored have been dispersed. Final- Here are what seem to be the most important: The ly, the term “intellectual property,” with its sub- transformation of the American economy, from stantial rhetorical force, has gradually displaced an agricultural to industrial to service-based to infor- older vocabulary centered on the phrase “limited mational, has resulted in an increase in the number monopolies.” and variety of interest groups clamoring for greater Those are what seem to me the principal causes protection of their intellectual products. At the of the growth. A separate question is whether the same time, the United States has gone from a net im- expansion has been socially desirable. With respect porter to net exporter of intellec- to the first waves of growth, the answer tual property. There has been a The number and is probably yes. Most of the extensions dramatic increase, starting in the of the zones of protection made in the early 20th century, in the perceived variety of 19th and early 20th centuries were nec- importance of advertising, which interest groups essary adaptations to the emergence of has made strong trademark pro- new kinds of works. The creators of tection seem even more imperative clamoring for those works had legitimate interests in to the firms that engage in it. compensation and would not likely Americans’ deep commitment to a greater have produced them at optimal rates labor-desert theory of property, to- absent legal shields against competi- gether with an associated equity protection of tion. theory of distributive justice, has their intellectual In contrast, most of the most recent helped fuel arguments that cre- expansions have been pernicious. For ators deserve fair returns for their products have example, there are plenty of incentives creativity. Popular suspicion, root- other than the hope of securing a patent ed in classical liberalism, of gov- increased. for making innovations in athletics. Many aspects of the product configu- ration doctrine in trademark law are similarly prob- lematic. Consider, for example, the Romm Art case (1992), holding that the Israeli artist Tarkay had established an artistic style—featuring languid women with lowered eyelashes in vaguely Euro- pean cafés—that was infringed by the posters of Pa- tricia Govezensky, even though no single Govezen- sky poster was deemed an infringement of Tarkay’s copyright in a given work. Finally, the recognition of business method patents is regrettable. No one suggests that the rate with which new business models were generated before 1998 was suboptimal or that the rate has since increased. The result is that patents on business methods produce all of the well-known disadvantages of patent law—dead- weight losses and litigation costs, for instance— without any offsetting social gains. Many other recent extensions of intellectual property law turn out, under scrutiny, to be similarly ill-advised. DISAGGREGATION As the three fields of intellectual property have expanded, they have begun to fragment. Sometimes, this disaggregation has been deliberate. Congress has, from time to time, identified a particular industry or a particular type of intellectual product, concluded that it warranted special treatment and created a customized set of rules to fit it. The first example was the design patent statute, which created an entirely new patent regime for ornamental inventions. Similarly, Congress, in an effort to com- ply with the Berne Convention, deliberately differ- entiated architecture from other types of copyrightable materials. Sometimes this disaggregation has been deliberate in a narrower sense. Confronted with a problem or plea peculiar to one industry, Congress or the courts have adopted rules limited to that industry. For example, copyright Congress has, in the gaps in a skimpy patent ap- law now permits performers to make plication. By contrast, the court “covers” of musical compositions, pro- from time to (oddly) persists in treating biotech- vided they pay a governmentally de- time, created a nology as an immature and unpre- termined fee. Another example is the dictable field. Thus, a smaller in- judge-developed requirement of con- customized set ventive step will suffice to render an ceptual separability, which applies invention nonobvious. But to obtain only to three-dimensional useful ob- of rules to fit a patent, the inventor must reveal jects. Applications for business- more about it to enable others to method patents, unlike most other a particular replicate it. patent applications, must be reviewed industry or kind In sum, the field of intellectual by two examiners. The requirement, property has already become, to a first developed by the courts, that de- of intellectual significant degree, fragmented. Is scriptive marks, colors and, most re- this trend good or bad? Should we cently, product configurations must product. celebrate and generalize it? Or have acquired secondary meaning be- should we resist it? fore being shielded by trademark law is yet anoth- Two substantial factors create a strong initial jus- er example. tification for disaggregation. But some other, insti- Sometimes, by contrast, disaggregation has been tutional factors suggest that disaggregation is risky. a largely inadvertent by-product of judicial deci- On balance, my suggestion is that lawmakers sions attempting to respond to the distinctive fea- should disaggregate more often and certainly more tures of certain industries. For example, as Profes- consciously but should be watchful for and seek to sors Dan Burk and Mark Lemley have shown, the avoid certain hazards. Federal Circuit has recently semiconsciously dif- ferentiated the software and biotechnology fields MERITS while applying the requirements for patentability. The first benefit of self-conscious disaggregation is In the former, the nonobviousness doctrine has that it would help to offset the dangerous rhetorical been applied strictly, while disclosure requirements force of the term “intellectual property.” If law- have been applied leniently. In the latter, the reverse makers could be persuaded to ask not: “What is nec- bias has been applied. Why? In the court’s view, essary adequately to protect creators’ intellectual software is a mature field. Persons having “ordinary property?” but instead: “What should be the scope skill” in programming are thought to be especially of rights to colors—or genes—or advertisements?” knowledgeable. Thus, you need a big “inventive they would be less likely constantly to expand the step” to reach higher than they could reach, and you zone of protection. Lawmakers might then concen- don’t need to disclose much, because they can fill trate on the economic and social benefits and costs

summer 2004 harvard law bulletin 29 characteristically occur. Some fields, such as the development of drugs from plants, conform reasonably well to a model of discrete innovation, render- ing discoveries relatively autonomous. In other fields, such as telecommunications, an initial, pio- neering invention commonly triggers successive waves of secondary inventions. In still other fields, like software, the typical member of each genera- tion of innovators draws on many forerunners and then spawns many more. A patent regime optimal for one type of industry is likely to be ill-suited to the others. There are several other sources of industry variation that argue in favor of disaggregation. Within trademark law, for instance, the strength of the public interests served by protecting names and insignia varies sharply by subfield. Within copyright law, some kinds of works are prima- associated with different types and Industries vary rily informational in character, while amounts of legal control over ideas. some are primarily creative or ex- The second, more complex factor increasin gly pressive in character. Rules appro- favoring disaggregation is that in- as to whether priate to the latter are not necessari- dustries differ—and differ in ways ly appropriate to the former. that cannot be accommodated by the intellectual Industries also vary, increasingly, general doctrines of copyright, patent as to whether intellectual property and trademark law. They vary most property protection is adequate to stimulate obviously and perhaps importantly innovation and to reward partici- in terms of the amount of legal in- protection is pants properly. The clearest exam- centives necessary to spur innova- adequate to ples of outliers are music and film. tion. In some fields, the lure of a copy- Traditional copyright protections are right or a patent is crucial to induce stimulate no longer capable of preventing mas- people to invent; in others, it’s not. A sive, nonpermissive reproduction few examples: Poets are less price- innovation. and distribution of digital audio and sensitive than screenwriters. Studies video recordings over the Internet. have shown that biochemists are primarily driven Partly as a result, the revenues of the music indus- not by thirst for high incomes, but by a cluster of try are dropping fast, and the fortunes of the film motivations we might call a commitment to science. industry are in peril. The search is currently on for But to warrant reducing levels of intellectual a new, better system. My own view—presented in a property protection in a given field, it is insufficient forthcoming book—is that the most promising can- to observe that inventors in that area would con- didate would be an alternative compensation sys- tinue to invent for nonpecuniary reasons. Firms tem, under which creators would be compensated must also be willing to invest in and market their (in proportion to the relative popularity of their cre- inventions, despite the absence of intellectual prop- ations) with funds raised by the government erty rights. It turns out that investment patterns through taxes. Many benefits—cost savings, con- also vary by industry. In some fields, custom or venience, cultural diversity and semiotic democra- first-mover advantages enable firms to reap ade- cy—would be reaped if, with respect to online dis- quate returns without the need for additional in- tribution of recordings, we replaced the crumbling centives, as Justice Stephen Breyer ’64 long ago sug- copyright regime with such an alternative source of gested in his study of the trade-book industry. In funding. But that’s a subject for another day. The other fields, intellectual property protection is more point for the purposes of the present subject is that important in attracting funding. some system sensitive to the special features of the A second source of interindustry variation in- entertainment industries would be better than con- volves the manner in which technological advances tinued reliance upon the generic rules of copyright.

30 harvard law bulletin summer 2004 HAZARDS to alter the tight constraints imposed by the sever- There are four offsetting concerns that suggest, at al intellectual property treaties to which the Unit- a minimum, that disaggregation should not be em- ed States is now a party. The TRIPS Agreement, for ployed casually. The first and most parochial is that example, would require amendment. Even where it makes the field harder to teach and understand. treaty amendments were not necessary or could be Second, the process of drawing the boundaries obtained, industry-specific reforms not paralleled between the newly subdivided categories will some- by similar reforms in other countries would create times be difficult. It may be easy to tell the differ- problems. ence between a smell and a sound, a movie and a song, or a plant and an animal. But other bound- CONCLUSION aries will be harder to police. For example, it’s no- The disaggregation of the law of intellectual prop- toriously tricky to differentiate business methods erty is happening. Two considerations suggest that from other kinds of processes. And the boundary this trend is desirable. Disaggregation would help between hardware and software is not as clear as neutralize the rhetoric of property rights that cur- one might think. Whenever a frontier is less than rently infuses and distorts the field. And it would crisp, disaggregation will incur unwanted costs. accommodate the multiplying and increasingly im- Third, it’s not clear which, if any, institution is portant respects in which fields of innovative ac- well-positioned to formulate and re- tivity differ. When pursuing this vise industry-specific rules. Congress It’s not clear strategy, however, we should try to has a decent track record in this re- locate reasonably definite bound- spect. But Congress is vulnerable to which, if any, aries between subfields. We should rent seeking, which would almost institution pay close attention to the design of certainly increase if Congress began the institution to which we entrust more often to set rules specific to each is well-posi- this task. And we would frequently industry. Equally important, indus- be obliged to harmonize our adjust- try-specific rules can become obso- tioned to ments to those made in other coun- lete quickly (the Audio Home Record- tries. Last, we’ll have to rethink the ing Act leaps to mind), and Congress formulate way we teach the subject. P may not be sufficiently nimble to ad- and revise just. The courts are more agile. Judges A video recording of the full speech can sometimes do a good job of fashion- industry- be obtained at www.cyber.law. ing industry-specific rules, as when harvard.edu/fisherlecture. they used a combination of antitrust specific rules. and copyright law to empower, but also to discipline, the performing-rights societies in the music industry, ASCAP and BMI. But the Supreme Court is very busy, and leaving the job in the hands of lower-court judges is bound to create circuit conflicts and forum-shopping. And the single, specialized tribunal that oversees patent dis- putes, the Court of Appeals for the Federal Circuit, has a mixed record on this front. That leaves administrative agencies. We might restructure the Copyright Office and the Patent and Trademark Of- fice to equip them for lawmaking, and then give them the job. The difficulty—sadly familiar to administrative-law scholars—would be to devise a way of either designing or supervising the agencies so that they acted wisely and independently. In short, no simple solution to this crucial challenge is yet apparent. Fourth and finally, lawmakers attempting to disaggregate the field would need either to abide by or PROPERTY THE INTELLECTUAL PROPERTY ISSUE 32 harvard law bulletin summer2004 HOT A IP curriculumevolves with student interest andnew by seth stern ’01 technologies photographs by W copyright infringement suit, andWeinreb plays theirsongs as merstein show tunes. tion; hemuch prefersclassical composers orRodgers andHam- blaring fromtheclassroom. mer Beatle George Harrison oreven popsinger Michael Bolton and you might hearthesongs of walk by lloyd professor weinreb’s bob o’connor But each ofthese musicians was involved inaprominent No, theyaren’t favorite tunes Rolling Stone Mick Jagger, for- from Weinreb’s record collec- copyright lecture, Renny Hwang ’05 and Ory Okolloh ’05 worked on a domain name policy for the island of Palau through a clinical at the Berkman Center.

summer 2004 harvard law bulletin 33 “The demand for intellectual property he discusses their cases. On another day, Weinreb might dis- rector of the Berkman Center, [classes] has play the insignia of the National Football League’s Baltimore is leading a class discussion Ravens, the subject of another copyright dispute. in his patent law course while been immense.” Such multimedia presentations were certainly not the norm standing before a PowerPoint LLOYD WEINREB ’62 when Weinreb ’62 took Copyright with Benjamin Kaplan at presentation. Yet the class Harvard Law 42 years ago. But much has changed in the in- discussion topic is consider- tervening decades in how students learn about intellectual ably less high-tech: a hypothetical salt-injected fishing lure de- property here. signed to catch bass. Whereas Kaplan’s two-hours-per-week copyright law class He presses one student to discuss whether the inventor was the only intellectual property course offering then, stu- should get a patent and what the appropriate field of art should dents today can fill whole semesters with the school’s nine IP- be. During his second IP class of the day, later that night, Fish- related offerings, including recent interdisciplinary additions er takes a back seat to his students in a seminar on current such as cyberlaw and biotechnology law. Just this fall, the trends in cyberlaw. school received a $3 million gift to establish its first professor- Eating takeout Thai food around a table in the attic of Austin ship in patent law. Hall, Fisher and his 15 students talk with visiting UCLA law “The demand for intellectual property has been immense,” school Professor Jerry Kang ’93 about who should own rights says Weinreb. “The whole world is interested in intellectual to private information on the Web. Kang asks them to consid- property right now.” er, if personal data like online buying habits is considered Outside of class, students with an interest in IP can do re- property, whether it’s best controlled by individuals, by com- search or enroll in a clinical at the Berkman Center for Inter- panies or in some form of mutual control. net & Society. Or they might write articles for the student-run In some classes, such as cyberlaw or biotechnology law, IP Harvard Journal of Law & Technology or help organize con- may be only a part of a broader interdisciplinary course. The ferences for the Harvard Committee on Sports & Entertain- biotechnology class is co-taught by Professor Charles Nesson ment Law. ’63 and two practitioners, including Boston biotech attorney Though the Internet bubble burst years ago, those offerings Bruce Leicher. keep attracting more students. One explanation: Harvard Law’s Leicher says he tried to impress upon the 36 students in the current student body is stacked with Internet startup survivors class how central a role intellectual property rights play in who brought their interest in technology with them. But stu- biotechnology innovation. “Until you have intellectual prop- dent interest in IP extends far beyond those Silicon Valley ex- erty, you have no research and development to sell,” explains patriates. To see why the same issues are relevant to the aver- Leicher, who currently serves as vice president and chief coun- age HLS student, look no further than Weinreb’s copyright class sel at a biotech firm. this past spring that met three times each week in Pound Hall. In one class, students split into teams and negotiated a hy- The first sound a visitor hears is the constant tapping of pothetical agreement between a university and a biotech firm keys—nearly all of the students in the room are typing their to obtain rights to a critical protein for a pharmaceutical de- notes on a laptop. And, thanks to schoolwide wireless Inter- velopment. net access installed this academic year at the direction of Dean “I’ve learned a lot from these classes,” says 3L Chris Car- Elena Kagan ’86, the World Wide Web is just a click away at naval, who took the biotechnology course last fall. He’s also en- every seat. That innovation is of little interest to Weinreb, a rolled in other IP courses, including Copyright and Internet self-described “semi-Luddite,” who didn’t even have a com- & Society, and worked both summers during law school at IP puter in his office until 2001. Even today, he says, he doesn’t law firms. One summer associate project: defending a suit know how to do much besides e-mail and hasn’t ever looked at against the Washington Redskins National Football League file-swapping programs like Napster. team trademark, which plaintiffs argued disparaged Native Still, in the 16 years since he started teaching copyright, Americans. “I wish the law school offered more classes like Weinreb’s approach has evolved along with new technologies. this,” he says. “I’d definitely take as many as I could.” In today’s lecture, he is wrapping up the copyright portion of In the future, Weinreb envisions the school expanding IP his class with a lecture on the fair-use doctrine before start- course offerings further to include a regular course in trade- ing a half-semester overview of patent law and trademarks. mark and unfair competition, a patent course every year and At the same time, Professor William Fisher III ’82, co-di- perhaps a separate patent litigation course. Such offerings

34 harvard law bulletin summer 2004 Professor Lloyd Weinreb ’62 teaches Copyright and Other Intellectual Property, one of the school’s growing number of IP offerings.

summer 2004 harvard law bulletin 35 1L Jeff Engerman had barely arrived at Harvard Law draw disproportionately on students with scientific or techni- such practical skills was School in the cal backgrounds who are looking for ways to incorporate those “quite helpful.” interests into a legal career. Others earned undergraduate de- Each semester, half a fall before he grees or Ph.D.s in computer science or other high-tech disci- dozen students also get prac- found a way to plines. tical experience by enrolling Some worked at Internet startups—or, in the case of 3L Lara in the Berkman Center’s clin- learn about IP. Garner, designed precision equipment for the PC board indus- ical program, which was the try before studying philosophy in college. Still others come from first of its kind when created in 1999. “We give students the op- creative fields like art, music or writing. portunity to learn that, yeah, that looks good on paper, but you “It seemed like a natural fit,” says Renny Hwang, a 2L who see what will happen in the real world and find all the loop- came to HLS after working as a product manager at an Internet holes,” says Diane Cabell, the Berkman Center’s director of clin- startup. 3L Michael Joffre came to HLS after completing a Ph.D. ical programs. in astrophysics at the University of Chicago and working for a For Hwang, his clinical meant learning where in the world year looking at gigantic clusters of galaxies with telescopes. is the island of Palau. That’s because Hwang was assigned to Joffre, who will clerk at the federal circuit court that handles help draft laws governing domain name registration and reso- patent cases after graduating this year, says his background pro- lution for the South Pacific island nation two hours from Guam, vides a unique perspective on the law. “It’s slightly more me- which is just two and a half times the size of Washington, D.C. thodical, slightly more analytical,” he says. “It’s just part of the Making matters more interesting: Palau requested a pro-domain training you receive as a scientist.” He says he found it easier holder policy, unlike other nations, which tend to favor the during his two summers at IP firms for him to relate to inven- trademark holder. tors and creators. “You have a similar background,” he says. Hwang and his partner on the project, 2L Ory Okolloh, say 1L Jeff Engerman worked at Internet search engine Northern building a domain name policy from scratch was a great expe- Light, doing operations and product management work, before rience—though the 12-hour time difference with their clients enrolling at Harvard Law. He barely arrived before finding a way meant e-mails were the only way to reach them. to learn about IP. Engerman has started doing research at the By the end of the term, Okolloh and Hwang expected to have Berkman Center’s “Chilling Effects” project, which supports free submitted a draft policy. “We can point to something that’s tan- speech on the Internet through a Web site that helps Internet gible,” says Okolloh, who will work this year as a summer as- users respond to legal threats such as cease-and-desist letters. sociate at a Washington, D.C., law firm with an IP practice. In his first semester, Engerman analyzed letters posted on And, for students who want to fill their free nights and week- the Chilling Effects site. In the spring semester, he switched to ends with IP too, there are always plenty of student activities analyzing trends in cease-and-desist letters. Though the re- to join. Pick up any recent copy of the Harvard Journal of Law search isn’t done yet, Engerman says there are many legitimate & Technology and read student-written notes with titles such as enforcement actions. This summer, he’ll continue his research “Trespass to Chattels and the Internet” and “Control of the Af- as an associate at the Berkman Center. termarket Through Copyright.” Engerman says such work has already changed how he thinks In March, JOLT hosted its annual conference on the impact about IP. “Working in the field, you start to feel it’s predetermined of emerging distribution technologies, featuring panelists such that larger players will take over,” he says. “But getting into the as Shari Steele, executive director of the Electronic Frontier legal way of thinking, you start to understand there are more Foundation, and TiVo’s general counsel, Matthew Zinn. One options to effectively fight for intellectual property rights and week earlier, the Harvard Committee on Sports & Entertainment support the progressive goals of the Internet community.” Law hosted its own conference that featured EFF co-founder There are also IP research opportunities that attract foreign and former Grateful Dead lyricist John Perry Barlow. Unfortu- students. LL.M. student Yuanshi Bu of China helped file copy- nately, many Committee on Sports & Entertainment Law mem- right registrations and translate documents for the Chinese ver- bers couldn’t make the JOLT conference—not that they weren’t sion of the International Commons project. The “I-Commons” interested in the topic. It’s just that they’d flown to Texas for a is designed to help automate the process by which users can music industry trade show. P obtain permission from authors for online content. Bu, who previously studied IP law in Europe and helped clients in China en- Seth Stern ’01 is a legal affairs reporter at Congressional Quarterly force IP rights against counterfeiting factories, says learning in Washington, D.C.

36 harvard law bulletin summer 2004 Doron Ben-Atar discusses his book “Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power” as part of a Berkman Center speaker series organized by Executive Director John Palfrey ’01 (right).

summer 2004 harvard law bulletin 37 THE INTELLECTUAL PROPERTY ISSUE 38 harvard law bulletin summer 2004 by emily newburger IN TUNE Project focusesProject onthelegal side ofthemusic industry photographs by HLS Recording Artists Artists HLS Recording leah fasten LAW THE WITH musician kabir sen has self-produced two albums, performed widely in the Boston area with other hip-hop artists, even appeared on the cover of Billboard magazine. But he felt he’d missed a beat when it came to contracts, business plans and the laws that govern his industry. So Sen, like dozens of other Boston-area musicians and producers every year, turned to HLS’s Recording Artists Project. It started in 1998 when two students approached Hale and Dorr Legal Services Center instructor Brian Price about a clinical focused on music and the law. “Their interest sprouted mostly from the desire to empower musicians,” said Price, who has a background in music law and heads the Community En- terprise Project, the clinic’s transactional practice. “The entertainment industry is notorious for being unforgiving if you don’t know what you’re doing.” Initially, the project focused on hip-hop and R&B artists. In a Clinical Program consulta- MClients now include a wider array of musicians as well as small tion, musician Kabir Sen (above) production and management companies. The program has also gets advice from Jennifer Chu ’06 (opposite and below), David grown beyond its clinical function: RAP now hosts panel dis- Flugman ’06 and supervising cussions—this spring on alternative revenue streams in the attorney Brian Price. music industry—as well as social events. It also launched a Web site this year with the Berkman Center for Internet & So- you’re just helping them make their dreams come true.” ciety (www.cyber.law.harvard.edu/rap), which provides practi- In February, when Kabir Sen met with Price and a team of cal information on legal issues for those navigating the music RAP students at the Hale and Dorr Center, he clearly had lots industry. of dreams for his music—and lots of questions. The team was For 3L Marina Bonanni, who has been a member since her prepared. One student asked about forming contracts with the first semester and co-director for the past two years, RAP has other musicians Sen works with. Another explained the pro- been an essential part of her law school experience. “It brings tection offered by forming a limited liability company. Anoth- together students who love music and are dedicated to enter- er talked to him about the relatively small fee and large pro- tainment law,” she said. As for the clinicals, “You have clients tection involved in trademarking his name. Another suggested who are really excited, really passionate about their music, and that he register his songs with organizations such as the Amer- ican Society of Composers, Authors and Publishers, which col- lects royalties. They also listened to Sen’s concerns about copyright problems relevant to many hip-hop artists. The musician explained that, although he performs with a band, he also creates his own electronic music, which includes samples of pre-existing works. “Sometimes I feel like I know there is just the right sam- ple out there,” he said, “exactly what I need to make that song sound incredible.” What he needs to know, he says, is what the law allows. That’s where RAP comes in. And the answers often end up being relevant to RAP students’ own careers. Paul Petrick got involved in the program last year and is now on the board. He’s a 3L but he’s also a deejay, and he is starting his own record label called Headtunes, featuring electronic music. By the time he signed his first two artists this year, he—like other RAP students—knew how to draft recording and management contracts and booking agent and band agreements. He could also set up his own LLC and was versed in publishing and per- formance rights, copyright and trademark issues. “From a practical standpoint, it was great,” said Petrick. “Everything I learned for what I’m doing now, I learned there.” P

summer 2004 harvard law bulletin 39 BOOK

40 harvard law bulletin summer 2004 SMART by emily newburger illustration by E alison seiffer students with disabilitiesstudents with workscopyrighted accessible to HLS professor seeks tomake she soonrealized that copyright was that brought her tothe collaboration, knowledge ofspecial education law Education Act. While itwas Minow’s Individuals withDisabilities implement the 1997 amendment tothe a Department ofEducation project to Technology, Minow beganworking on called the Center for Applied Special the textleads toacopyright violation.” she says, isthat “every openingup of range ofdisabilities. The challenge, curriculum tochildren withawide technology exists toopenup the a bookhasbeendigitized,the Professor Martha Minow, isthat once classmates. The good news, says to the sameeducation asher the law says she must still have access textbook orseethe words onitspages, even ifachild Four years ago, withanorganization summer 2004 harvard law bulletin cannot hold a 41

THE INTELLECTUAL PROPERTY ISSUE where she needed to focus. ploring alternative compensation schemes for the Particularly pivotal was the Chafee Amendment, K-12 textbook market, just as Professor William which allows for materials to be scanned or copied Fisher III ’82 has done for the music industry (see for persons with visual or related impairments. page 17). According to Minow, there are parallels be- Some have assumed that this exception could be ex- tween the problems faced by the two industries, but panded to cover those with other disabilities, but so there are also major differences, such as the nature far the courts have been silent on this issue. Minow of the demand. “There is no tremendous desire for soon became convinced that, beyond looking into bootlegged copies of sixth-grade math texts,” she legal strategies to fend off lawsuits, the project says. And the number of K-12 students considered should work directly with the textbook publishers. disabled under IDEA (less than 9 percent) is just a She turned to her colleagues at the Berkman Center grace note compared to the market for a Norah Jones for Internet & Society, who have been grappling CD. with copyright issues affecting the film and music Yet, the way Minow and her partners at CAST industries. In October 2002, the center co-hosted a are thinking about education, the pool of users meeting that brought together for the first time the could get bigger. Minow says studies show that major textbook publishers with technology and many nondisabled students have different learning copyright experts. styles and that they would benefit from much of the The publishers were wary educational software that expands print textbooks. “We are trying at first, says Minow. But “In addition to working within the existing law,” she quickly most everyone agreed says, “we are trying to envision a world in which we to envision a that current efforts—includ- don’t create two sets of teaching materials but ac- ing teachers copying and tually have the fully accessible curriculum for every world in which scanning books—barely serve kid.” we ... have the the visually impaired stu- Minow says working on the project has been ex- dents who are covered by the citing and emboldening. Seeing a child who has at- fully accessible Chafee Amendment, let alone tention deficits engaged by interactive versions of students with other disabili- the lessons, or another who can’t speak presenting curriculum for ties. a multimedia report that suddenly makes him the Most also agreed they cool kid, gives her hope for making the promise of every kid.” must find ways to get children the 1997 special education law the reality. MARTHA MINOW access to the curriculum 3L Deborah Gordon agrees, calling her three without depriving publishers years on the project the best part of law school. It of control over the quality or content of their prod- took her into the Boston Public Schools with Perl to ucts. And, of course, they had to make sure that study how technology is already at work. It also led publishers could still make a profit. Erica Perl, man- them to investigate the laws in each state regard- aging director and research attorney at the project, ing the digital versions of texts that publishers have says one of the challenges involves the cost of ne- to provide. Encouraged by that study, Congress au- gotiating digital rights with numerous artists and thorized a national panel—on which Minow has writers. But if publishers were to provide digital served—to generate a standardized file format for versions of all texts at the beginning, she says, mon- digitized versions of all texts. The proposal has now ey now spent on converting the textbooks might be been incorporated into the latest version of the spe- used for these contracts. cial education law that’s pending before the House With help from the Berkman Center and its Dig- and could lead to the establishment of a national ital Media Project, Minow, Perl and HLS students clearinghouse of digital files. Someday Gordon are trying to come up with just this sort of business hopes to work in education law, and she is grateful model innovation. “We’re trying to sweeten the that she got “to meet people and talk to them about pot,” says 1L Charlie Hoffmann, a former high the issues instead of just reading about them in the school teacher and software engineer. “We have to classroom.” figure out ways to incentivize publishers to do this Minow says the project has been educational for for their own gain.” Many publishers already use her too: “It’s provided a terrific window for me into traditional accounting systems, which rely on how lawyers can become problem solvers.” From schools buying a book for every student who wants business plans to agreements, she says, “We’ll use an electronic version. But the project is also ex- whatever tools it takes to solve the problem.” P

42 harvard law bulletin summer 2004

Profile Corporate Sleuth

onservative publications Lenzner readily admits he government partnership as one of have vilified Terry Lenzner ’64 stumbled into investigative law by the keys to protecting the nation’s for his investigative work on behalf dumb chance. safety. “We had Mohammed Atta’s of President Bill Clinton. But In 1963, during a clerkship with name in the spring of 2001,” he said Cpolitics is not what drives him, he Paul, Weiss, Rifkind, Wharton & of the 9/11 hijackers’ alleged says. Garrison in New York City, Lloyd ringleader. “Atta was renting cars “I’ve never applied a political Garrison, the partner he worked and buying plane tickets with a litmus test when I’ve considered for, advised him to consider a credit card under his own name. If whether to accept work,” said the career with the Civil Rights we’d had cooperation between the former federal prosecutor and Division of the Justice Department. government and credit card Watergate lawyer. “I look instead at “Here is Garrison, one of the companies, we could have headed whether the work is interesting, greatest civil rights advocates of the him off.” and whether I think I can help the time,” he recalled, “and I said to Though recognizing the risks of situation.” him, ‘I just don’t have much interest infringing on Americans’ privacy Lenzner finds plenty to keep in those issues.’ Luckily for me, rights, Lenzner is convinced that “it him intrigued as chairman of Lloyd smiled and said, ‘Just go is absolutely vital that we take these Investigative Group International, a down there and check it out.’” kinds of steps now to protect our worldwide network of former law He did. And Lenzner found his country.” enforcement and intelligence calling as an investigator in While he’s cultivating dialogue officers and lawyers he founded in Philadelphia, Miss., during between CEOs and the CIA, 1984 as an adjunct to his own law Freedom Summer, 1964. His work Lenzner is also working to realize firm. With headquarters in helped win the murder conviction another of his dreams: to provide Washington, D.C., IGI deals with of seven of the suspects in the law students with tools for learning highly sensitive issues, such as infamous Mississippi Burning trial. what he has discovered in his years money laundering, corporate These days, Lenzner is as in the investigative trenches. “I network security, asset searches focused on saving the country from would like to teach,” he said, “and and intellectual property. In one of terrorists as he was on furthering write a casebook that would its famous cases, IGI investigated civil rights in the ’60s. demonstrate how to gather the United Way of America’s “I’ve become quite interested in information, in an ethical and legal president and his colleagues for how we might protect ourselves fashion, in complex financial and misappropriation of funds, helping from people who would use our fact investigations. That would be to stop illegal activity and save the financial institutions and our my way of summing up everything public charity’s reputation. And technology against us,” he said. He I’ve learned since 1964, and to leave Clinton’s personal lawyers hired sees the country’s vulnerability behind a contribution.” Lenzner to help investigate through the lens of IGI’s work independent counsel Kenneth Starr auditing corporate technological and his staff during the Whitewater and communications infrastruc- investigation and the Lewinsky tures for weak spots. This caseload scandal. has grown since Sept. 11, 2001. For all of his accomplishments in Just as IGI follows these audits Attorney Terry Lenz his cloak-and-dagger career, with recommendations for how businesses can reduce their risks, Lenzner sees a corporate-

By Eileen McCluskey | photographed by chris hartlove in washington, d.c., april 26, 2004

46 harvard law bulletin summer 2004 ner ’64 has made investigation his business

summer 2004 harvard law bulletin 47 Profile Equal Signs Paul Steven Miller ’86 Has Made It

restaurant employee is fired. said. “I think that’s attributable to discriminating.” He didn’t violate company policy. the ADA, to an education process That litigation has included a In fact, he’s a good employee, that employers have begun to sexual harassment suit against according to his manager. But he journey down. … It has made Mitsubishi Motor Manufacturing Ais fired because, as the regional America stronger, because it forces of America, in which the company manager put it, he is one of “those employers to focus more on settled for $34 million in 1998. people.” people’s qualifications than on Miller also cites a case settled For much of his career, Paul stereotypes about that individual’s against Burlington Northern Santa Steven Miller ’86 has advocated disability.” Fe Railway, which, according to the for “those people,” whether they be Miller became director of agency, secretly performed genetic black, Latino, over 40, Muslim or in litigation for the Western Law tests on employees who filed claims a wheelchair—anyone who is Center for Disability Rights, deputy for work-related injuries. targeted for how they look or who director of the U.S. Office of Employers—or society at large— they are. As a commissioner for Consumer Affairs and White House should not assign a negative value the U.S. Equal Employment liaison to the disability community. to genetic mutations, Miller says. Opportunity Commission for the Now one of the longest-serving After all, he says, most people who past 10 years, Miller helped the commissioners in EEOC history, he actually have them don’t. restaurant employee (who has will leave the agency on July 1 and “Just because it is harder to be mental retardation) recover will teach on the faculty at the different doesn’t mean that you substantial damages and has University of Washington School want to erase that difference or that supported other victims of of Law. As commissioner, he identity,” he said. “I don’t think that discrimination who, like himself, spearheaded efforts to resolve people should view folks with just want a chance to show what charges of discrimination through disabilities—whether you use a they can do. mediation, helping to improve the wheelchair, or you’re a dwarf, or Born with achondroplasia, a agency’s longtime backlog. (During you’re blind or what have you—and genetic condition that results in his tenure, the commission has say, ‘Oh, I bet you sit around hoping dwarfism, Miller got his chance received an average of more than that you could get out of your only after 45 law firms rejected him 80,000 charges a year alleging wheelchair and walk again,’ during law school, with one workplace discrimination.) He has because I don’t think that people member of a firm telling him the also endorsed the selective use of with disabilities think that way, for reason: Their clients would think litigation both to protect employees the most part, any more than that they were running a “circus and to send a message to African-Americans run around freak show.” The passage of the employers. wishing that they were white.” Americans with Disabilities Act “We try very hard to work with The country has made progress in 1990 has made such overt good employers, and we do a lot of in erasing the stigma of being discrimination rarer and has training and we do a lot of outreach disabled, Miller says, just as the changed the culture of the to employers,” said Miller, who has stigma once attached to race, sex, American workplace, Miller says. traveled to every U.S. state on national origin or religion has “I think that the reality for behalf of the commission, “but decreased significantly since the students with disabilities, for there are also recalcitrant EEOC began operating in 1965. But, professionals with disabilities, is employers and bad actors out there, he cautions, he has seen for himself dramatically different today than it and we try to reach out and litigate that we haven’t finished the job yet. was a scant 15, 18 years ago,” he and stop those bad actors from

By Lewis Rice | photographed by david deal in washington, d.c., march 31, 2004

52 harvard law bulletin summer 2004 His Job to Combat Workplace Discrimination

summer 2004 harvard law bulletin 53 Profile The Case for the President Ken Mehlman ’91 Heads Re-election

en Mehlman ’91 was a Republican remains on the president and the position, as chief of staff for Rep. before law school. But HLS helped themes of leadership, security and Kay Granger, also from Texas, led to make him the Republican he is “compassionate conservatism” that his meeting Karl Rove, her cam - today. His predominantly liberal he believes will sway the election in paign consultant and later Bush’s Kfellow students in fact made George W. Bush’s favor. senior adviser in the White House. him “more Republican, more “The strong message we can Following the 2000 election, conservative,” spurred by his view bring forward is that this is a Mehlman became White House that rampant elitism drove their president who has the strong political director and one of Rove’s ideology, he said. leadership to take on incredibly deputies, working closely with him “There were a lot of people there tough challenges and do it in a way on the administration’s political who seemed to think that, because that not only solves those chal- strategy. Rove, a frequent target of of the fact that they were fortunate lenges but deals in a very big way Democratic criticism, “ultimately to have this excellent education, with big problems,” said Mehlman. cares about the substance and ideas they were therefore entitled to He acknowledges that the as much as anybody and masters make decisions for other people presidential election will likely be them as much as anybody,” said who didn’t have that education,” he close, much like the last one, which Mehlman. said. “And my experience is that I Mehlman saw firsthand as the Personal attacks against Rove respect people no matter what their national field director for Bush- and the president himself—or education is. Usually people are Cheney 2000 and one of the first indeed against anyone in politics— able to make decisions for their own officials from Bush campaign cheapen discourse and alienate lives and don’t need a bunch of kids headquarters to travel to Florida voters, Mehlman says. “Too often it who went to a good law school to after the state’s contested vote. His becomes personal; it becomes tell them what to do.” role in Bush’s victory, in which he divisive,” he said. “This is the Mehlman’s boss would likely supervised regional political biggest gripe I have, and this partly concur. That’s just one reason directors across the country, was explains my ideological politics. I Mehlman is working to ensure that the culmination of a career in don’t think you need to question he keeps him in office for another politics that began with his party’s people’s motives.” four years. rise to power in Congress. His own motives are simple, he Once a member of the HLS After three years practicing says. The term “compassionate Republicans, Mehlman now serves environmental law at Akin Gump conservative,” coined by the as campaign manager for the Bush- Strauss Hauer & Feld in Washing- president, inspires him. He believes Cheney re-election effort. He ton, D.C., Mehlman joined Texas that conservative approaches—less directs the operation from an office Congressman Lamar Smith’s staff government, more individual building in Arlington, Va., in which as legislative director in October responsibility, more of a he monitors the president’s field 1994. He recalls an attorney at the market orientation—produce organization and, as he did during firm saying to him then, “House compassionate ends. And he has an interview in the fall, the Republicans are less important believed in the president since the Democrats who want to upend him. than a bucket of warm spit. Why first time he met him, when Bush Yet, even as he occasionally are you going to work for them?” was running for governor of Texas glances at a TV in his office A month later, he had an answer, and echoed his own views. Of showing Democratic candidates when Republicans gained the course he wants people to vote for appearing at an event in majority in Congress and influence Bush—but he’s not going to tell Washington, D.C., his focus they had long lacked. His next them what to do.

By Lewis Rice | photographed by brendan smialowski, getty images

56 harvard law bulletin summer 2004 Effort for George W. Bush

summer 2004 harvard law bulletin 57 Profile Life Lessons Marina Volanakis ’99 Delivers on the Promise

ometimes making the greatest mandatory three-week session in Program. After six weeks learning impact on a student’s life is as July. Volanakis doesn’t leave work business and operations simple as changing his fifth-grade during the week until 8:30 or 9 at management at the Haas School of homeroom. That’s what Marina night, and since all teachers are on Business at Berkeley and four SVolanakis ’99 did for 10-year-old call 24 hours a day, her cell phone months traveling around the Gabriel, and it was enough to turn starts ringing at 6 p.m. with stu - country studying effective school him from a disrespectful dents calling for help with their two models, Volanakis returned to troublemaker into a dedicated hours of required homework. Georgia in January 2003 to student. And Volanakis spends She has always believed establish her own school. She most every waking hour trying to education was the best way to visited more than 80 homes, talking find out what will make her other change lives, but she first became with prospective students and their students flourish too. passionate about public education parents, selling her idea of a school “I always wanted to put myself when she taught in the Mississippi that didn’t yet exist. in a position where I could make Delta as part of the Teach for Eighty percent of her students real changes in people’s lives,” she America program. qualify for the federal subsidized said. “And we do that here every “I know what we promise in meal program, and her incoming day. When I talk to parents, they terms of public education in class of 75 fifth-graders ranged in tell me, ‘You’ve changed my child’s America,” said Volanakis, “and in reading levels from students who life. My child has never been so Mississippi I saw that the reality, were in the first percentile to one excited about learning before.’” particularly in low-income student who scored in the 99th Last July, Volanakis founded communities, is that we’re just not percentile. Volanakis plans to add KIPP South Fulton Academy, a providing it. That alarmed me.” an additional grade each year until charter middle school in East Point, She chose law school as a way to the academy has approximately 320 Ga., where she serves as principal get involved in education reform. students in grades five through and a teacher. The school is part of She interned with the Office for eight. the Knowledge Is Power Program, a Civil Rights of the U.S. Department Some of her students’ parents network of charter schools that of Education during her 2L year were initially skeptical of what grew in 10 years from two schools and spent that summer at the this Harvard-educated lawyer was in South Bronx, N.Y., and Houston Education Law Center of doing setting up a school in south to more than 30 top-performing Pennsylvania. Because of the Fulton County. But Volanakis schools in 13 states and the District adversarial nature of the legal never wavered. She says she doesn’t of Columbia. system, she came to feel that wake up in the middle of the night A typical day for the former lawyers shouldn’t be changing wondering what she was put on marathoner begins at 7:30 a.m., schools: Educators should. earth to do. She knows she is when she leads students in a “I didn’t want to keep putting a doing it. morning running program. The Band-Aid on a wound that’s already school day officially ends at 5 p.m., there,” said Volanakis. “I wanted to two to three hours later than most find a way to make sure the injury schools. It’s also open two didn’t occur in the first place.” Saturdays a month and holds a A former Skadden Fellow with the Atlanta Legal Aid Society, she became a Fisher Fellow in 2002 with the KIPP School Leadership

By Christine Perkins | photographed by ann states in east point, ga., april 3, 2004

62 harvard law bulletin summer 2004 of Public Education

summer 2004 harvard law bulletin 63 CLASS NOTES

Isabella, and are expecting their second community-based housing development or- tural resource management. She is an associ- child in October. ganization. He is an associate in the Detroit ate at Baker & Daniels in Washington, D.C. office of Miller, Canfield, Paddock and Stone Javier Miguel Tizado LL.M. was admitted and a member of its financial institutions and Lowell D. Plotkin and Genelle H. Kelly were to practice as a special legal consultant in the transactions group. married on Aug. 16. Plotkin is a real estate as- District of Columbia. He joined White & Case sociate at Kirkpatrick & Lockhart in Newark, in Washington, D.C., in 2001 and has been Laurie Puhn announces the sale of her book N.J., and Kelly is working toward her medical working in the international arbitration and “Instant Persuasion: How to Change Your degree. litigation group. He and his wife, Marina A. Words to Change Your Life” to Penguin Corpi de Tizado, “happily and proudly an- Group (USA). It is scheduled for publication William A. Van Asselt joined Warner Nor- nounce that [they] have brought to the world in January 2005. She is presently an associate cross & Judd as an associate in the Holland, another ‘Chacarita’ fan,” Marcos Javier, on at Orrick, Herrington & Sutcliffe in New York Mich., office. Prior to joining the firm, he May 26, 2003, in Alexandria, Va. City. She wrote, “If you want tips on how to served as the executive director of the Martin quickly get what you want from others, check Luther King, Jr. National Memorial Project Gabriel Torres joined Simpson Thacher & out and join Laurie Puhn’s free ‘Instant Per- Foundation. He lives in Holland with his Bartlett as an associate in the New York City suasion’ club at www.lauriepuhn.com.” wife, Gwendolyn, and their son, Willem. office. He previously clerked for the Hon. Albert M. Rosenblatt ’60 of the New York Zheng Zha LL.M. and his wife, Huan Luo, Geri Zollinger was named an associate at Court of Appeals. announce the birth of their first baby, Wolf, Greenfield & Sacks in Boston. Franklin Mutian Zha, on March 6 in Mary- 2002 Deidre A. Downes joined Klehr, land. 2005 George Farah is the executive di- Harrison, Harvey, Branzburg & Ellers in rector of Open Debates, a Washington-based Philadelphia as an associate in the corporate 2003 Manuel Calderon and Erin E. Fo- nonprofit committed to reforming the presi- and securities department. She concentrates ley joined Fulbright & Jaworski as associates dential debate process. Board members in- her practice in representing private invest- in the Austin, Texas, office. Calderon focuses clude HLS Professor Jon Hanson, John B. ment funds, privately held companies and on intellectual property matters and Foley Anderson LL.M. ’49, Randall Robinson publicly traded corporations. primarily on commercial litigation. Hannah ’70 and Jamin Ben Raskin ’87. In January, (Sibiski) Machart joined the firm as an as- the organization formed the Citizens’ Debate In April, Murad Kalam was honored as a sociate in the Houston office, focusing her Commission, a nonpartisan presidential de- 2004 Hemingway Foundation/PEN Award practice on appellate and litigation matters. bate sponsor, consisting of 17 national civic finalist for his novel, “Night Journey” (Simon leaders. Farah’s book, “No Debate: How the & Schuster, 2003). Marion P. Forsyth co-edited “Legal Perspec- Republican and Democratic Parties Secretly tives on Cultural Resources” (Altamira Press, Control the Presidential Debates,” was pub- David R. Mitchell was elected a director of 2003), a collection of articles on legal issues lished by Seven Stories Press in April. the Greater Corktown Development Corp., a pertaining to historic preservation and cul- Calendar sept. 10-11 june 9, 2005 HLS LEADERSHIP COMMENCEMENT CONFERENCE Harvard Law School Harvard Law School 617-495-3129 617-495-4906 sept. 23-24, 2005 oct. 21-24 HLS LEADERSHIP FALL REUNIONS WEEKEND CONFERENCE Classes of 1949, 1959, 1974, 1984, Harvard Law School 1989, 1999

ANTON GRASSL 617-495-4906 Harvard Law School 617-495-3173 may 13-14, 2005 oct. 20-23, 2005 HLSA SPRING MEETING FALL REUNIONS WEEKEND april 14-17, 2005 Classes of 1950, 1960, 1975, 1985, Harvard Law School SPRING REUNIONS 1990, 2000 617-495-4698 WEEKEND Harvard Law School Classes of 1955, 1965, 1970, 1980, june 8, 2005 617-495-3173 1995 ALUMNI SPREAD AND Harvard Law School CLASS DAY EXERCISES 617-495-3173 Harvard Law School 617-495-4698

66 harvard law bulletin summer 2004 Keep us posted Please send us your news by July 16, 2004, for the fall issue.

Fax: 617-495-3501 E-mail: [email protected] U.S. Mail: 125 Mount Auburn St., Cambridge, MA 02138

Career ANTON GRASSL

Personal

Name (FIRST) (LAST) (MAIDEN, IF APPLICABLE) Firm/Business (CITY) (STATE) Title Phone

E-mail address Year and degree

Address change? Pyes Pno

I would like to read more about

summer 2004 harvard law bulletin 67 Hello, Old Friend Catching up, hanging out, at Spring Reunions

1. 1994 classmates Anders Yang, Peter Zaldivar, Marc Babsin and Charles Hsieh 2. 1969 classmates Cliff Case and James William Silver 3. the 1964 class photo 4. Wally Myers ’54

68 harvard law bulletin summer 2004 5 6

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5. Eric Moye ’79 6. 1979 classmates Steve Thel and Don Scherer (’80) 7. 1979 classmates Beth Labson and Paul Chessin 8. 1954 classmates Darwin Dornbush and James Shapiro 9. Melissa McCann ’94 and her husband, Robert Santangelo ’95

photographs by kathleen dooher summer 2004 harvard law bulletin 69 Traphagen Distinguished Alumni Speaker Series

2 During the year, 22 alumni discussed their careers with students as guests of Dean Elena Kagan ’86. The speaker series is supported by Ross E. Traphagen Jr. ’49. 1

1. Michael A. Roth ’80, founding partner, Stark Investments 2. Scott L. Lessing ’91, partner, McKinsey & Co. 3. Adam S. Cohen ’87, editorial board, The New York Times 4. John F. Olson ’64, partner, Gibson, Dunn & Crutcher 5. Jeffrey C. Levy ’89, CEO, Open Point Networks 6. Robert H. Rawson Jr. ’71, partner, Jones Day 7. James Roosevelt Jr. ’71, senior vice president and general counsel, Tufts Health Plan 8. Peter M. Yu ’90, president and CEO, AIG Capital Partners 9. Rachel L. Brand ’98, principal deputy assistant attorney general, U.S. Department of Justice 10. Harold M. Williams ’49, of counsel, Skadden, Arps, Slate, Meagher & Flom 11. Joshua S. Friedman ’82/M.B.A. ’82, founder and managing partner, Canyon Partners 12. Debora M. de Hoyos ’78, managing partner, Mayer, Brown, Rowe & Maw 13. Bentley Kassal ’40, litigation counsel, Skadden, Arps, Slate, Meagher & Flom; retired judge, New York court system 14. Brian P. Bellmore LL.M. ’69, partner, Bellmore and Moore 15. Judith F. Aidoo ’87, chief executive, The Aidoo Group 16. Peter A. Carfagna ’79, chief legal officer/general counsel, IMG 3 4 Worldwide 17. Lena G. Goldberg ’78, executive vice president and general counsel, Fidelity Investments 18. Ronald A. Rosenfeld ’64, president, Government National Mortgage Association 19. H. Rodgin Cohen ’68, chairman, Sullivan & Cromwell 20. Alice Young ’74, partner and chair, Asia Pacific practice group, Kaye Scholer 21. Christopher A. Keyser ’85, Keyser/Lippman Productions 22. R. Ted Cruz ’95, solicitor general, Texas

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19 Obituary Information Details may be sent to Harvard Law Bulletin, In Memoriam Editor, 125 Mount Auburn St., In Memoriam Cambridge, MA 02138

1920-1929 Jackson E. Spears ’29-’30 of New Indiana. Prior to that, he taught at Drake Canaan, Conn., died July 14, 2003. He was University School of Law in Des Moines, Matthew Brown ’28 of Boston died Sept. 5, an investor and specialized in finance and Iowa. 2003. He practiced law for more than six philanthropy law. For 60 years, he was on decades, helping found what is now Brown the board of trustees of New York Medical Sheldon G. Harlan ’30-’31 of Ashton, Md., Rudnick Berlack Israels in Boston in 1944. College and served twice as president. He died Sept. 13, 2003. Formerly of Livingston, In the 1970s, he was a judge for the Munic- received three of the college’s highest N.J., he was a program supervisor for the ipal Court of Boston. He was president of honors, and a community service award U.S. Bureau of the Census in New York City. the Combined Jewish Philanthropies and was established in his name there. He was served as chairman of the endowment also a director of Stamford Hospital, St. Patrick M. Hennessey ’30-’31 of Bidwell, program for the group’s 75th anniversary. Joseph Hospital and Westchester Medical Ohio, died Sept. 6, 2003. For nine years, he was a Brookline, Mass., Center. selectman, and he was a sergeant at arms for Meyer Fix ’31 of Fairport, N.Y., died Aug. the Republican National Conventions of 1952 1930-1939 23, 2003. A senior partner specializing in and 1956. A chairman of the board of Boston litigation at Fix, Spindelman, Turk, Broadcasters Inc. during the 1970s, he also Charles P. Baker Jr. ’30 of Painesville, Himelein & Shukoff in Rochester, N.Y., he funded the Brown Walk-in Clinic at Beth Ohio, died Feb. 9, 2004. He was a Painesville also was a lecturer on trial practice at Israel Hospital and was a fellow at Brandeis Municipal Court judge, the city’s law Cornell Law School. University. After retiring, he served as a director, and owner and president of the mediator in the Palm Beach (Fla.) Circuit Painesville Publishing Co. An expert in Ohio Bernard Phillips ’31 of New York City died Court. on township zoning law, he crafted the legis- June 6, 2003. He was a sole practitioner lation that allowed townships to develop specializing in foreign mergers. Earlier in George Turitz ’28 of Washington, D.C., their own zoning codes. He was a lawyer for his career, he practiced law at Gordon, died Jan. 1, 2004. He was a lawyer and 61 years, founding his firm, Baker & Hacken- Brady, Caffrey & Keller in New York City. In administrative law judge with the National berg, in Painesville in the early 1930s. the early 1930s, he was assistant corporation Labor Relations Board. Earlier in his career, counsel for the city of New York. he worked for the legal department of the David R. Pokross ’30 of Belmont, Mass., Puerto Rico Reconstruction Administration died Oct. 28, 2003. He practiced law in William C. Pierce ’31 of West Baldwin, in San Juan and, in 1934, ran for Congress on Boston for 72 years, 70 of which were with Maine, died Nov. 12, 2003. He was a partner the Socialist ticket for the 16th District of Nixon Peabody. Specializing in general at Sullivan & Cromwell in New York City, New York. During WWII, he served as a corporate and electric public utility law, he where he specialized in commercial first lieutenant in the U.S. Army, working in also worked on corporate policy matters and banking, and trusts and estates. He was counterintelligence in North Africa. estate planning. In the 1970s, he was director of the European-American Banking chairman of the firm’s executive committee, Corp. and the European-American Bank Louis B. Eten ’29 of Hackettstown, N.J., and he was later counsel to the firm, and Trust Co. He was also chairman of the died April 5, 2003. He was a partner and working several days a week until April banking law section of the New York State later of counsel at Brown, Wood, Fuller, 2003. He was involved in many charities and Bar Association, a trustee of Bowdoin Caldwell & Ivey in New York City. He organizations in Massachusetts, including College and treasurer of Brown Memorial specialized in securities regulation. the Combined Jewish Philanthropies of Library. A president of the Maine Historical Greater Boston, the United Way of Massa- Society, he published the article “The Rise John W. Munro ’29 of Fayetteville, N.Y., chusetts Bay, the Boston Symphony and Fall of the York & Cumberland Rail died Dec. 9, 2003. He was a member of Orchestra and the American Jewish Histor- Road” in the society’s quarterly publication. McDermott, Will & Emery in Chicago and ical Society. He was chairman of the board During WWII, he was a lieutenant what became Hancock & Estabrook in Syra- of overseers of the Heller School for Social commander in the U.S. Navy. cuse, N.Y. After retiring, he served as an Policy and Management at Brandeis Univer- arbitrator in family court. He was a member sity and established the David R. Pokross Andrew B. Young ’31 of Upper Gwynedd, of the American Iris Society. Fund for Children in Need through the Pa., died Aug. 21, 2003. Formerly of Boston Foundation. During WWII, he Chestnut Hill, Pa., he was a founder of Mortimer J. Shapiro ’29 of Miami and served in the U.S. Navy. Stradley Ronon Stevens & Young in West Orange, N.J., died Sept. 23, 2003. Philadelphia, and he helped the firm grow He was CEO of his family’s business, the Cleon H. Foust Jr. ’30-’31 of Indianapolis from a three-lawyer partnership into a firm Sheppard Baking Co. in North Bergen, N.J. died July 27, 2003. He was dean of Indiana of more than 300 employees. He continued He previously practiced law in Newark. University School of Law from 1967 to 1973. to work at the firm five days a week until a He was a director of Oheb Shalom Congre- He retired in 1978, after 24 years at the law few months before his death at 96. He gation in South Orange, was vice president school, and served as chairman of the helped draft the 1954 Internal Revenue Code of the Jewish Education Association of Indiana Correctional Code Study Commis- and served as chairman of the ABA’s divi- Metrowest and served on various sion. He was also vice chairman of the sion of tax in 1963. He lectured on finance at committees of the Metrowest Jewish Indiana Criminal Justice Institute. From the Wharton School of the University of Federation. 1947 to 1949, he was attorney general of Pennsylvania and on tax at other universi-

summer 2004 harvard law bulletin 71 IN MEMORIAM ties and law schools. He was chairman of nals. In 1979, he was elected to the American Howland S. Warren ’35 of Nahant, Mass., the Philadelphia Industrial Development Academy of Arts & Sciences. died July 29, 2003. An attorney and bank Corp. for more than 20 years. During executive for nearly four decades, he was vice WWII, he served in the U.S. Army Surgeon Frederic P. Houston ’34 of Bristol, Maine, president and counsel of Old Colony Trust General’s Office, converting businesses for died Sept. 6, 2003. Formerly of New York, he Co., trust counsel of First National Bank of the war effort. was a senior member and counsel of Otter- Boston and counsel at Herrick and Smith in bourg, Steindler, Houston & Rosen in New Boston. He served on many boards, including Warner M. Bouck ’32 of Albany, N.Y., died York City, a firm his father co-founded in as a trustee of Children’s Hospital and as Feb. 19, 2004. For over 20 years, he was 1909. He was counsel to the Textile Fabrics treasurer of the New England Conservatory senior partner of Bouck, Holloway, Kiernan Association and associate counsel and of Music. He was also a member of the Boston & Casey in Albany, joining the firm as a general counsel of the New York Board of Athenaeum and the Tavern Club, a group of partner in the 1940s. He served on several Trade. He helped found the House of the amateur playwrights. His father was HLS committees of the New York State Bar Asso- Redeemer, an Episcopal retreat center in New Professor Joseph Warren LL.B. 1900. During ciation and the New York State Bar Founda- York City, where he served in executive posi- WWII, he served in the U.S. Navy in Sicily tion and was a board member of many civic tions for 45 years. He served as a captain in and the Pacific. and cultural organizations, including the the U.S. Army Air Forces in England and Albany Institute of History and Art and the attained the rank of lieutenant colonel in the Herbert D. Tobin ’35-’36 of Newport Albany Medical College. During WWII, he Reserve. Beach, Calif., died Nov. 3, 2003. A longtime was a contract administration officer in the residential developer, he was president of U.S. Navy. Ralph E. Bowers ’35 of Lake Forest, Ill., Frank I. Tobin and Sons and built homes in died Oct. 23, 2003. He was vice president, New England and California. In 1937, he Ray I. Hardin ’33 of Basking Ridge, N.J., corporate counsel and corporate secretary for helped establish one of the first chapters of died Sept. 9, 2003. He practiced tax law at Marshall Field & Co. in Chicago. He later the National Association of Home Builders what is now Dewey Ballantine in New York served as of counsel to Vedder, Price, and served as president of the Building City. Kaufman & Kammholz. During WWII, he Industry Association and the Residential served as an industry member of the National Builders Council. In 1974, he received the Thomas A. Keegan ’33 of Rockford, Ill., War Labor Board. highest honor of the Building Industry Asso- died Sept. 27, 2003. He was a trial and ciation of Southern California, the Merito- general practice attorney in Rockford for James B. Gordon ’35 of Chestertown, Md., rious Award. He was a member of the Los more than 50 years. Early in his career, he died March 25, 2003. He was a lawyers’ Angeles County Sheriff’s Mounted Posse and was an Illinois assistant attorney general search consultant. was a sworn reserve deputy for 25 years. He and a chief trial attorney for the Office of served in the U.S. Coast Guard Reserve. Price Administration in Washington, D.C. John R.L. Johnson Jr. ’35 of Rockland, In 1959, he was elected to the American Del., died Dec. 23, 2003. A longtime employee Duane E. Minard Jr. ’35-’37 of Boonton, College of Trial Lawyers. He joined the U.S. of Hercules Powder Co. in Wilmington, Del., N.J., died Dec. 22, 2003. He was CEO and Navy during WWII and served as officer in he joined the company as assistant general chairman of the board of Blue Cross Blue charge of the Armed Guard on merchant counsel in 1936 and was elected vice presi- Shield of New Jersey. ships. He later served as counsel to Secre- dent and a member of the executive and tary of the Navy James Forrestal. finance committees in 1955. He served on Abraham S. Guterman ’36 of Mamaro- several organizations’ boards, including as neck, N.Y., died Feb. 11, 2004. A tax, trusts Henry P. Phyfe ’33-’35 of New York City director and president of the College of and estates attorney, he was a partner at died April 17, 2003. He was a physician and William & Mary Alumni Society and trustee Hess, Segall, Guterman, Pelz, Steiner & the great-grandson of Duncan Phyfe, an of the college’s endowment association. Bavorick, which merged with Loeb & Loeb in American furniture maker. He was a member New York City in 1986. He taught at New York of the Harvard Club of New York City and led Martin A. Jurow ’35 of Dallas died Feb. 12, University Institute on Federal Taxation and the club’s weekly Shakespeare group. 2004. A studio executive in Hollywood and wrote a number of articles on taxation. He New York, he was an assistant to movie titans was a benefactor and trustee of Yeshiva Kenneth C. Davis ’34 of La Jolla, Calif., Jack L. Warner and Hal B. Wallis and an University and served on the boards of many died Aug. 30, 2003. A legal scholar and independent producer for movies, including businesses and private foundations. pioneer in the field of administrative law, he “Breakfast at Tiffany’s,” “The Pink Panther” taught at the University of San Diego School and “The Great Race.” As an agent for MCA H. Ober Hess ’36 of Gladwyne, Pa., died of Law from 1976 until his retirement in 1994. and the William Morris Agency, he was Feb. 18, 2004. He was a partner and later He helped create the field of administrative instrumental in the making of “My Fair senior counsel at Ballard Spahr Andrews & law as a unified body of law, publishing Lady,” “Oklahoma!,” “South Pacific,” “The Ingersoll in Philadelphia, where he served as “Administrative Law” in 1951 and a multi- King and I,” “Guys and Dolls” and “The chairman from 1973 to 1981. He was the editor, volume treatise on the topic in 1958. He Music Man.” He later moved to Dallas and since 1941, of the Fiduciary Review, a monthly helped draft the 1946 Administrative Proce- continued to work on films, including “Terms law journal, and he edited “The Nature of a dure Act. Earlier in his career, he was a of Endearment.” He became an assistant humane society: a symposium on the Bicen- lawyer both in private practice and with the district attorney for Dallas County and taught tennial of the United States of America.” He federal government. He later taught at many a course at Southern Methodist University. served on many civic and cultural boards and universities, including as a visiting professor was a trustee of the Philadelphia College of at HLS from 1948 to 1950. He held a chaired Bernard W. Slater ’35 of Beulah, Mich., Art. professorship at the University of Chicago died Dec. 20, 2003. He was president of the until 1976 and published more than eight Histacount Corp., a printing company in Leonard Kaplan ’36 of Cambridge, Mass., dozen scholarly articles in national law jour- Melville, N.Y. died Oct. 11, 2003. For more than five decades

72 harvard law bulletin summer 2004 IN MEMORIAM he worked for Nutter McClennen & Fish in tion. He was a member of the Bronxville Field and probate law. As a partner at Drury, Boston, retiring as a senior partner in 1987. Club and secretary of the board of governors Lynham and Powell, he represented the He was also a special assistant attorney for the Siwanoy Country Club. During Washington Baseball Club and Washington general in the charities division of the state WWII, he served as a lieutenant in the U.S. Senators owner Calvin Griffith. He was attorney general’s office. He was president of Naval Reserve in the Mediterranean. general counsel to National Savings and three local Jewish organizations and served Trust Bank. In the 1950s, he taught estate law as vice president of the National Jewish Stanley W. Osgood ’36-’37 of Winchester, and the history of English law at Georgetown Welfare Board. He was honored by the Mass., died Nov. 12, 2003. He was a senior test University. A member of many professional American Jewish Committee and the Lena editor for Houghton Mifflin and worked organizations, he was president of the Bar Park Community Development Corp. for his closely with author Robert L. Thorndike, Association of the District of Columbia, the community service. An overseer of the helping to shape the Lorge-Thorndike Intelli- Barristers and the John Carroll Society. He Boston Symphony Orchestra, he was a cello gence Tests and the Stanford-Binet Intelli- was also president of the Archdiocesan player and participated in the Harvard Music gence Scales. Earlier in his career, he sold Board of Education in Washington, D.C. Association orchestra. insurance for Northwestern Mutual Life During WWII, he served in the U.S. Naval Insurance Co. During WWII, he worked for Reserve, attaining the rank of lieutenant Gilbert Kerlin ’36 of Riverdale, N.Y., died the U.S. Naval Electronics Laboratory. commander. April 9, 2004. He spent his entire career at the Wall Street firm of Shearman & Sterling. Richard M. Root ’36-’37 of Des Moines, Edward F. Connor ’37-’38 of Hingham, For 50 years, he worked to preserve the Iowa, died Aug. 21, 2003. He practiced law in Mass., died Jan. 17, 2004. He was a sole practi- natural landscape of the Riverdale section of Des Moines and was a trust officer at Brenton tioner in Hingham and previously worked for the Bronx, founding the Riverdale Commu- Bank from 1967 until his retirement. He the Federal Aviation Agency, now known as nity Planning Association, which developed previously lived in Paris, where he was an the Federal Aviation Administration. He a rezoning plan to restrict construction of employee of the U.S. government. Supporters represented the agency during the 1950s, apartment buildings. In 1961, he was instru- of liberal arts education, he and his wife when it expanded airports across New mental in saving Wave Hill, a 28-acre estate funded trusts at several universities and England. overlooking the Hudson and the Palisades, colleges in Iowa. He was a charter member of from development and helping make it into the Iowa Wine Advisory Board and a 33-year Nathaniel L. Berger ’38 of Pompano Beach, a public garden and cultural center. member of the Sertoma Club of Des Moines. Fla., died April 17, 2002. He was president of He served in the U.S. Army from 1942 to 1953, Nat Berger Securities Corp. John Lansdale Jr. ’36 of Harwood, Md., attaining the rank of captain. died Aug. 22, 2003. He was a longtime Roland Gray Jr. ’38 of Hobe Sound, Fla., partner at Squire, Sanders & Dempsey in the Samuel Duker ’37 of Clifton, N.J., died Dec. died Feb. 4, 2004. Cleveland and Washington, D.C., offices and 18, 2003. A sole practitioner, he specialized in served in the U.S. Army as head of intelli- labor relations. He retired from the practice Harry P. Letton Jr. LL.M. ’38 of San gence and security for the Manhattan Project of law in 1975 and spent half of his time in Marino, Calif., died Oct. 29, 2002. He was during WWII. As part of the Alsos Mission Jerusalem. president and chief executive of Southern prior to the end of the war, he was instru- California Gas Co. He served as president of mental in locating and removing close to Owen Jameson ’37 of San Francisco died Los Angeles Town Hall, vice president of the 1,100 tons of uranium ore in northern Oct. 20, 2003. A corporate lawyer, he prac- Greater Los Angeles Chamber of Commerce, Germany, the products of a German atomic ticed his entire career at McCutchen, Doyle, a director of Independent Colleges of bomb project. As head of security for the Brown & Enersen, now known as Bingham Southern California and chairman of Amer- Manhattan Project, he approved security McCutchen, where he was managing partner ican Gas Association and Pacific Coast Gas clearance for physicist J. Robert Oppen- for 20 years. He was a longtime member of Association. During WWII, he was a heimer, leader of the scientific team for the the Pacific-Union Club and served as presi- communications officer in the U.S. Navy. atomic bomb project, and later defended that dent from 1972 to 1973. He helped raise funds decision during congressional hearings of the for Saint Francis Memorial Hospital, Oppor- Edwin J. Putzell Jr. ’38 of Naples, Fla., died McCarthy era. He attained the rank of colonel tunities for the Blind and the University of Dec. 23, 2003. He was mayor of Naples from and subsequently was awarded the Legion of California, San Francisco. During WWII, he 1986 to 1990. In 1937, he joined Donovan, Merit and the Order of the British Empire, was an attorney representing the Office of Leisure, Newton and Lumbard and helped Degree 4 Commander. Price Administration and the Manhattan Bill Donovan set up the Office of Strategic Project. Services, the precursor of the CIA. During Bernard Roberts ’36 of Lake Worth, Fla., WWII, he was an executive officer of the died Nov. 22, 2003. Formerly of Palm Beach, Monroe Kroll ’37 of San Francisco died Office of Strategic Services, and in late 1943, Fla., and Newton, Mass., he was an attorney, March 20, 2002. For 35 years, he was an he played a part in a plot to capture Adolf real estate developer, investor, civic leader immigration judge for the U.S. Immigration Hitler while Hitler was on a yacht out at sea. and philanthropist. He was president of and Naturalization Service in San Francisco. After 1945, he joined Monsanto Co. in St. Roberts Brothers Realtors, developing apart- He was an honorary member of the San Fran- Louis as general counsel and vice president, ment complexes and commercial properties cisco chapter of the American Immigration and he later served as senior partner at in the Greater Boston area. He was also a Lawyers Association and an officer and Coburn, Croft & Putzell in St. Louis. He was director of a number of companies, associa- board member of Congregation Sherith Israel vice chairman of the St. Louis County Board tions and hospitals. in San Francisco. of Police Commissioners and president of the St. Louis Social Planning Council. He moved Walter F. Sloan ’36 of Rye, N.Y., died Aug. 5, John Eris Powell ’37 of Chevy Chase, Md., to Naples in 1979 and was chairman of the 2003. Formerly of Bronxville, he was general died Oct. 15, 2003. A Washington, D.C., trial Naples Airport Authority before being tax counsel for Caltex, a petroleum corpora- attorney, he specialized in corporate, estate elected mayor. After his mayoral term, he

summer 2004 harvard law bulletin 73 IN MEMORIAM served on a number of civic boards in Collier Jersey chapter of the ACLU, and he served as Early in his career, he practiced in Roxboro, County and was awarded the Naples Daily its president for 25 years. In 2000, the N.C., before serving as administrative assis- News Outstanding Citizen Award in 1995. National Staff Organization presented him tant to Sen. Willis Smith in Washington, with the first Emil Oxfeld Advocacy Award. D.C., and later as an assistant U.S. attorney Ray W. Richardson Jr. ’38 of Jacksonville, in Raleigh. He served in the U.S. Army Fla., died Aug. 21, 2003. A founding partner Robert Lorne Stanfield Q.C. ’39 of Ottawa during WWII. of Freeman, Richardson and Watson in Jack- died Dec. 16, 2003. He was leader of the sonville, he specialized in corporate law and Progressive Conservative Party of Canada Howard Meyers ’40 of Washington, D.C., insurance and lectured on corporation law at and served as premier of Nova Scotia from died Feb. 6, 2004. He worked on interna- state bar seminars. He was president and 1956 to 1967. He was chosen as his party’s tional security and atomic energy issues as a honorary director of Florida Georgia Blood national leader in 1967 and entered the House Foreign Service officer posted in London, Alliance, a director of Voyager Group and of Commons. After losing to Pierre Trudeau Brussels, Tokyo and Washington, D.C. He president of Duval County Legal Aid Associ- in the 1974 elections, he stepped down as was staff director of the Presidential ation. Active in the Florida and American bar head of the party. He was often referred to as General Advisory Committee on Arms associations, he was commended for his “the greatest prime minister Canada never Control and Disarmament and, from 1974 to efforts in expanding legal aid programs had.” 1977, was special assistant to the director of within the state in the 1949 annual report of the U.S. Arms Control and Disarmament the ABA president. During WWII, he was a Winthrop B. Walker ’39 of Harrisville, Agency. After retiring from the Foreign major in the U.S. Army Air Forces. N.H., died Dec. 30, 2003. Formerly of Lincoln, Service in 1977, he worked at the U.S. State Mass., he was a vice president for State Street Department, helping to establish its central- Norbert Lee Anschuetz ’39 of Wash- Bank in Boston and a director or trustee of a ized document declassification system. A ington, D.C., died Oct. 15, 2003. He was a number of civic organizations. founding member of the International Insti- Citibank executive specializing in foreign tute for Strategic Studies, he was also a affairs and served in the Foreign Service for Philip C. Seminara ’39-’40 of Pasadena, governor of Diplomatic and Consular Offi- 22 years. At Citibank, he was vice president Calif., died Dec. 10, 2003. cers and a trustee of the DACOR-Bacon for international affairs in New York and House Foundation. During WWII, he director of Citicorp’s international develop- 1940-1949 served in the U.S. Army Counter Intelli- ment organization in London. During his gence Corps in New Guinea, the Philippine time in the Foreign Service, he served in Arthur L. Adamson ’40 of Rumson, N.J., Islands and Japan. Athens, Greece, and Bangkok, Thailand. He died Feb. 2, 2004. He was executive vice was a minister counselor in Cairo, Egypt, president and later president of Electronics Edward M. Rothstein ’40 of Lakewood, shortly after the Suez Crisis and in Paris Associates, a company he founded with the N.J., died Oct. 24, 2002. He was a member of during Charles de Gaulle’s presidency. In Signal Corps team he served with during Rothstein, Mandell, Strohm, Must & 1968, he retired from the Foreign Service. He WWII. He was president of the Rumson Gertner in Lakewood, where he practiced was a member of the Council on Foreign Board of Education during the 1950s and real estate and trusts and estates law. He Relations. During WWII, he served in the 1960s. A sailor, he was commodore of the was assistant Ocean County counsel for 10 Judge Advocate General’s Corps in Austria. Shrewsbury Sailing and Yacht Club and for years and was township attorney for Lake- many years raced his yacht, Wing II, one of wood Township and Lakewood Board of Milton I. Goldstein ’39 of St. Louis died the first Cal 40 racing sloops on the East Education. From 1942 to 1946, he served in Dec. 7, 2003. He co-founded Goldstein and Coast. He was a founding member of Polly’s the U.S. Army. Price in St. Louis in the mid-1950s and Pond Sailing Association and a founder of specialized in admiralty law. He previously Wayside Skeet Club. He won the state skeet John A. Swainbank ’40 of St. Johnsbury, practiced with Green, Hennings and Henry. shooting championship in 1964. Vt., died Jan. 18, 2004. A longtime St. Johns- Active in the Jewish community and in civil bury attorney, he practiced law for 53 years liberty causes, he was president of the board Raymond L. Brittenham ’40 of New York and helped found Swainbank, Morrissette of trustees of St. Louis Jewish Light, a weekly City died Nov. 14, 2003. He was a director of and Neylon in 1949. A St. Johnsbury community newspaper; president of the the French Institute Alliance Française and selectman, town agent and town attorney, he Jewish Community Relations Council of St. senior vice president, general counsel and helped found and directed the Community Louis; and vice chairman of the National director of International Telephone and School for the Handicapped and Caledonia Jewish Community Relations Advisory Telegraph Corp., where he worked for 25 Home Health. He served in the U.S. Navy as Council. During the late 1950s, he headed a years. He later joined Lazard Freres as a a communications officer in the Pacific lecture series sponsored by the Jewish consultant in investment banking and was during WWII. Community Center called the Liberal Forum, vice president of the Tinker Foundation, which hosted Eleanor Roosevelt and the Rev. both in New York City. A major in the U.S. Alfred E. Kenrick Jr. ’40-’41 of Isle of Martin Luther King Jr. From 1942 to 1945, he Army’s Office of Strategic Services during Palms, S.C., died Jan. 30, 2003. was a lieutenant in the U.S. Coast Guard. WWII, he received a Bronze Star, the French Croix de Guerre and the Belgian Herbert Y.C. Choy ’41 of Honolulu died Emil Oxfeld ’39 of South Orange, N.J., died Chevalier de l’Ordre de Léopold. March 10, 2004. He was a senior judge of the July 20, 2003. A civil libertarian and labor Ninth Circuit U.S. Court of Appeals. lawyer, he represented workers and unions, Robert E. Long ’40 of Burlington, N.C., Appointed to the bench in 1971 by President including the New Jersey Education Associa- died Feb. 18, 2003. He practiced law in Nixon, he was the first Asian-American to tion. He worked on cases involving loyalty Burlington beginning in 1952 and was a be appointed to a federal court. Earlier in oaths, prayer in school, McCarthyism and director of Aeroglide Corp. of Raleigh. He his career, he practiced law in Honolulu and unconstitutional excesses of congressional was president of the Burlington Rotary Club served a term as attorney general of the committees. In 1960, he founded the New and was named a Rotary Paul Harris Fellow. Territory of Hawaii. He enlisted in the U.S.

74 harvard law bulletin summer 2004 IN MEMORIAM

Army after the bombing of Pearl Harbor. He Finger Lakes Race Track in Farmington. Korean War and was a counterintelligence served as a judge advocate general, learned Earlier in his career, he was an attorney in instructor at Fort Holabird, Md. Japanese and was instrumental in writing a New York City and worked for several years new constitution for Japan after the war. for Pfizer Pharmaceutical Co. Philip M. Hanft ’42 of Tucson, Ariz., died April 13, 2002. Formerly of Duluth, Minn., Whitfield J. Collins LL.M. ’41 of Fort Arnold L. Veague ’41 of Bangor, Maine, he was a senior partner of Hanft Fride in Worth, Texas, died Nov. 24, 2003. A partner and Cocoa Beach, Fla., died May 26, 2003. Duluth, where he represented mining inter- at Cantey & Hanger in Fort Worth, he prac- He was a partner at Eaton, Peabody, Brad- ests in the Iron Range of northern ticed tax and estate law at the firm for 54 ford & Veague, now Eaton Peabody in Minnesota. He was active in civic affairs in years. He served on the boards of many Bangor, where he worked for 40 years. Duluth, was a board member of the Univer- corporate and cultural institutions, Active in the Bangor community, he was a sity of Arizona Sarver Heart Center in including the Fort Worth Opera, Fort Worth member of the city council and served as Tucson and was a veteran of WWII. Symphony Orchestra, Van Cliburn Founda- council chairman in 1955. He was a trustee tion and Modern Art Museum. In 1995, he of the Northern Conservatory of Music, John J. Rhodes ’42 of Mesa, Ariz., died received the Blackstone Award, the highest Castine Community Hospital and the Aug. 24, 2003. For 30 years, he was an honor of the Tarrant County Bar Associa- Bangor Savings Bank and was president of Arizona congressman, the first Republican tion, and in 2001, he received an award from the Penobscot County Bar Association and elected to the U.S. House of Representatives the All Saints Foundation for outstanding the New England Bar Association. He was from Arizona. He was house minority health care philanthropy. During WWII, he an expert trap shooter and received a leader in 1974 when he visited President served in the U.S. Navy as a lieutenant number of trophies for his marksmanship. Richard Nixon with Sens. Barry Goldwater commander and an aide to Fleet Admirals During WWII, he served with the U.S. and Hugh Scott on Aug. 7, advising Nixon to Ernest J. King and Chester Nimitz. Army’s 88th Infantry’s “Blue Devils,” in resign. Nixon resigned the presidency on North Africa and Italy. Aug. 9. He served nine years as minority Ramon de Murias ’41 of Babylon, N.Y., leader and worked to win approval for the died Jan. 28, 2004. He was vice president of Anthony P. Alfino ’42 of Gainesville, Fla., Central Arizona Project, a large canal international affairs for Braniff Airways died June 22, 2003. Formerly of Vero Beach system that brought Colorado River water to and Pan American-Grace Airways and a and St. Louis, he was a senior labor counsel central and southern Arizona. He headed director and board chairman of Southside at General Dynamics Corp. in Clayton, Mo., the GOP National Conventions in 1976 and Hospital. He wrote “The Economic Regula- for 21 years, specializing in equal employ- 1980. After leaving Congress in 1983, he tion of International Air Transport.” During ment opportunity. He served in the U.S. practiced in the Washington, D.C., office of WWII, he served as a lieutenant Army Air Corps during WWII. Hunton & Williams. In July 2003, he was commander in the U.S. Navy. awarded the first Congressional Distin- Robert R. Cotten II ’42 of Binghamton, guished Service Award. He served in the Arnold M. Gordon ’41 of Niskayuna, N.Y., N.Y., died Dec. 30, 2003. He taught English, U.S. Army Air Forces as an administrative died Oct. 29, 2003. A member and later history and economics at Broome Commu- officer stationed in Arizona during WWII. senior counsel at Gordon, Siegel, Mastro, nity College and business law at Triple Mullaney, Gordon & Galvin, now in Latham, Cities College from 1948 to 1949. Active in James F. Stern ’42 of Longboat Key, Fla., N.Y., he practiced law for more than 50 years local politics, he served as Binghamton city died March 19, 2004. Formerly of and was a noted trial attorney in New York’s counsel and was instrumental in estab- Milwaukee, he was an attorney and CEO of Capital Region. He lectured on trial advo- lishing Binghamton’s first public housing- Great Lakes Biochemical Co. A member of cacy and was president of the Schenectady complex. the British Philatelic Society and the Amer- County Bar Association. A major in the U.S. ican Philatelic Congress, he received several Army during WWII, he was awarded the Hugh Gregg ’42 of Nashua, N.H., died awards for his stamp collections. He wrote Bronze Star. Sept. 24, 2003. He was a lawyer and busi- “Swimming Pools and the Law.” During nessman, and he served as governor of New WWII, he served in the U.S. Army as a first Willburt D. Ham LL.M. ’41 of Lexington, Hampshire from 1953 to 1955. A GOP activist lieutenant. Ky., died Dec. 8, 2003. A professor emeritus and champion of the presidential primary, at the University of Kentucky College of Law he was the state’s Republican National Melville Chapin ’43 of Cambridge, Mass., since 1986, he had taught at the school since Committeeman and a member of the state died March 9, 2004. A longtime corporate 1949. In 2003, he was inducted into the Ballot Law Commission. In 1997, he was lawyer, he was of counsel at Kirkpatrick and university’s College of Law Alumni Associa- named to a special New Hampshire-Iowa Lockhart in Boston. He began his career at tion Hall of Fame. He was previously a commission to preserve the New Hampshire Warner and Stackpole in Boston, which visiting professor at Southern Methodist primary and Iowa presidential caucuses. He later merged with Kirkpatrick and Lock- University School of Law and the University wrote two books on the New Hampshire hart. A trustee for many organizations, he of Louisville School of Law. He was a presidential primary and one book claiming served for 50 years as a trustee for the director of the University of Kentucky New Hampshire as the official birthplace of Massachusetts Eye and Ear Infirmary and Research Foundation and a member of the the Republican Party in October 1853. helped raise over $12 million for the Kentucky Securities Advisory Committee. During his career, he practiced at the law performing arts center at Phillips Academy. firm Sullivan & Gregg and was treasurer During WWII, he served as a lieutenant in Leonard B. Thomas ’41 of Aurora, N.Y., and later president of the family millwork the U.S. Navy. died June 17, 2003. Formerly of Sennett, he firm, Gregg & Son Inc. In 1947, he was was an entrepreneur, philanthropist and elected alderman-at-large in Nashua before Jack H. Fisher ’45 of Kalamazoo, Mich., nationally recognized thoroughbred horse becoming mayor in 1950. He served as a died March 31, 2003. He was a sole practi- breeder. He owned Lime Ledge Farm in special agent with the U.S. Army Counter tioner specializing in estate planning, Sennett, and his horses won many races at Intelligence Corps during WWII and the probate, personal injury and corporate law.

summer 2004 harvard law bulletin 75 IN MEMORIAM

He was a director of the Kalamazoo County George M. Cheston ’47 of Philadelphia Maryland counties. The case included 8,600 Bar Association and the Legal Aid Bureau. died Oct. 15, 2003. He was an officer of the plaintiffs, 14 defendants, 40 lawyers and He published over 200 articles on numis- Philadelphia Orchestra Association, trustee more than 7 million documents. During matics and syngraphics and was elected to of the Philadelphia Zoological Society and the WWII, he was a lieutenant in naval commu- the Numismatic Literary Guild for original Philadelphia Museum of Art, and a director nications in Europe. research. of the American Federation of the Arts. Edward C. Maher ’47 of Shrewsbury, Duncan Longcope ’45-’47 of Boston and Arthur H. Healey ’47 of New Haven, Conn., Mass., died Feb. 3, 2004. Formerly of Lee, Mass., died Dec. 23, 2003. A writer and died July 25, 2003. He was an associate justice Worcester and Osterville, he was an attorney artist, he was on the staff of The New Yorker of the Connecticut Supreme Court from 1979 in Worcester for 55 years and was president, and lived in Paris in the 1960s. During to 1990 and later served as a state trial chairman of the board and CEO of Home WWII, he served in the U.S. Army. referee. He was appointed to the Connecticut Federal Savings and Loan Association. A Court of Common Pleas in 1961 and the Supe- senior partner at Maher, McCann and Talcott William H. Witt ’45-’47 of Mitchellville, rior Court in 1965, where he served as chief until 1975, he later served as of counsel with Md., died Oct. 24, 2003. A longtime resident judge from 1977 to 1978. Earlier in his career, Phillips, Silver, Talman, Aframe and Sinrich. of Bethesda, he worked for the Foreign he was a three-term senator of Connecticut, He was active in local politics and, in the late Service for 30 years, serving as a political rising to majority leader in 1959. During 1940s and early 1950s, was local secretary to affairs officer and teaching courses in inter- WWII, he served in the U.S. Army. Congressman John F. Kennedy. For 40 years, national law at National Defense University he served on various public commissions and at Fort McNair in Washington, D.C. In the J. Frederick Hoffman ’47 of Lafayette, authorities, and he was the longest-serving 1960s, he was a political counselor to the Ind., and Sonoita, Ariz., died Oct. 20, 2003. member of the Massachusetts Port Authority. U.S. Embassy in South Africa and then a He was a senior and founding partner of During WWII, he was a captain in the U.S. senior official in the U.S. State Department’s Hoffman, Luhman & Masson in Lafayette. He Army. Bureau of African Affairs in Washington. served as Tippecanoe County attorney from During WWII, he served in the U.S. Army 1971 to 1982 and again from 1995 to 1997. A Gilbert Siegal ’47 of Hartsdale, N.Y., died Air Forces. fellow of the Indiana Bar Foundation, he March 9, 2004. An attorney for over 50 years, served as president of the Tippecanoe County he was the Greenburgh, N.Y., urban renewal Laurence A. Tisch ’46-’47 of New York Bar Association and the Legal Aid Corpora- commissioner and housing commissioner City died Nov. 15, 2003. A Wall Street tion of Tippecanoe County. He received the and president of the Hartsdale Civic Associa- investor and media mogul, he co-founded Indiana State Bar Association’s Pro Bono tion. He served in the U.S. Army Air Forces Loews Corp. and was chairman, president Publico award and was named a Sagamore of during WWII and was awarded two Distin- and CEO of CBS Inc. He was a trustee of the the Wabash by Indiana Gov. Frank O’Bannon guished Flying Crosses, two Conspicuous Whitney Museum of Art, the Metropolitan for his work in civic affairs. Service Crosses, four Oak Leaf Clusters and Museum of Art and the New York Public numerous air and marksmanship medals. Library and president of the United Jewish C. Bedford Johnson ’47 of Hanover, N.H., Appeal of New York. As chairman of the died Dec. 6, 2003. A longtime resident of Ralph O. Winger ’47 of New York City died board of trustees of New York University Bedford and Mt. Kisco, N.Y., he spent his Sept. 25, 2003. He was a senior tax partner at from 1978 to 1998, he helped raise almost $2 career with Shearman & Sterling in New Cahill Gordon & Reindel in New York City. billion for the university, including more York City, where he was a partner and legal He joined the firm in 1947 and was a partner than $40 million from his family’s dona- adviser to Citicorp. He was a director of many for more than 30 years before retiring in 1991 tions. During WWII, he served in the U.S. companies, including Fuji Bank. He served in and becoming senior counsel to the firm. Army, Office of Strategic Services. the U.S. Marine Corps during WWII, was wounded at Iwo Jima, and received a Bronze Richard M. Wyman ’47 of Lexington, Robert E. Bingham ’47 of Cleveland Star and a Purple Heart. Mass., died May 17, 2003. He was a partner at Heights, Ohio, died June 25, 2003. He prac- Wyman & Gulick in Boston. ticed law for 50 years, was a councilman in Charles J. Kickham Jr. ’47 of Brookline, Shaker Heights and served on more than 20 Mass., died Dec. 27, 2003. He practiced law in William J. Brick Jr. ’47-’48 of Portsmouth, civic boards, including as president of the Brookline for more than 55 years, forming N.H., died Dec. 26, 2003. He was a financial Cleveland Mental Health Association, the Kickham Law Offices in 1948. He served control analyst for the Mas sachusetts Depart- Cleveland Church Federation and the Cleve- three times as president of the state bar asso- ment of Welfare in Springfield. He published land Health Museum. For 30 years, he prac- ciation and was on the board of governors for a number of short stories and essays. During ticed corporate law, and he later did estate the HLSA of Massachusetts. He was a grad- WWII, he served as a bombardier in the planning and probate work at Thomson uate of Holy Cross, and the faculty lounge in 815th Bomber Squadron. His plane was shot Hine in Cleveland before joining Spieth Bell the school’s religion department is named in down over Austria, and he was a prisoner of McCurdy and Newell. After retiring from his honor. In 1942, he joined the U.S. Navy war in Germany. Spieth Bell in 1989, he helped establish and served in the Philippines during WWII. offices for Columbus-based Porter Wright Irwin W. Barkan ’48 of Columbus, Ohio, Morris & Arthur in Cleveland and Naples, Marshall A. Levin ’47 of Baltimore died and Fort Myers, Fla., died June 19, 2003. He Fla. A golfer, he was the Mayfield Country Feb. 1, 2004. A Baltimore Circuit Court judge, practiced law for 41 years and was the Club champion seven times and runner-up he was named to the bench in 1971 and founding partner of the firms Barkan & eight times. During WWII, he served as an continued to hear cases until two weeks Barkan and Barkan & Neff. In Columbus, he intelligence officer in the U.S. Navy, before his death. In 1992, he presided over a was a Franklin County councilman and a stationed at Adm. Chester Nimitz’s head- historic asbestos-injury case, the nation’s founder of Alvis House, a halfway house for quarters at Pearl Harbor. largest mass trial, consolidating pending released prisoners. He participated in the asbestos claims from Baltimore and several Great Books program with the state peniten-

76 harvard law bulletin summer 2004 IN MEMORIAM tiary and was a member of the Legal Redress theater. Cassis, France. During WWII, he served in Committee of the NAACP. After retiring to the U.S. Army Air Forces and received the Florida, he was an attorney emeritus with the William C. Cramer ’48 of St. Petersburg, Silver Star, the French Legion of Honor and Florida Rural Legal Services and the Lee Fla., died Oct. 18, 2003. Elected to Congress in the Croix de Guerre with Palm Leaf. He was a County Sheriff’s Association and was a 1954, he was the first Republican to win a co-founder and trustee of the Battle of founding promoter of the Quality Life congressional seat from Florida since Recon- Normandy Foundation. Program in Fort Myers. He served in the U.S. struction. He served eight terms in the House military during WWII. and was the ranking Republican on the Nathaniel B. Taft ’48 of White Plains, N.Y., House Public Works Committee during his died Jan. 11, 2004. A lifelong resident of Edward T. Butler ’48 of La Jolla, Calif., and fifth term. In 1964, he became vice chairman Westchester, N.Y., he was a sole practitioner Yuma, Ariz., died Dec. 24, 2003. He served on to Gerald R. Ford on the Republican Confer- in New York, specializing in health care and the San Diego County Superior Court and ence. He surrendered his seat in 1970 after an life insurance regulation. He previously was an associate justice on the Court of unsuccessful run for U.S. Senate. He later worked for New York Life Insurance Co., Appeal, 4th District from 1982 to 1988. After practiced law in Washington, D.C., and heading several national and New York state retiring, he worked with a private mediation Pinellas County, Fla. From 1952 to 1984, he group insurance industry task forces. After service. In 2000, his civic contributions were served as a delegate or alternate delegate to 22 years with the company, he retired as recognized by the deputy-mayor, who the Republican National Convention. Earlier group vice president. He was active in his proclaimed Feb. 7 Edward T. Butler Day in in his career, he was city attorney in Pinellas community and was president of the Westch- San Diego. Earlier in his career, he was senior Park, was Pinellas County attorney and ester Philharmonic from 2001 to 2002. vice president of Electro Instruments, was served in the Florida House of Representa- During WWII, he served in the U.S. Army. appointed city attorney of San Diego in 1964, tives. During WWII, he served as a lieu- practiced at Schall, Butler, Boudreau & Gore tenant aboard the USS Omaha. He partici- Dow Votaw ’48 of La Selva Beach, Calif., and was a candidate for mayor of San Diego pated in the invasion of southern France. died March 29, 2004. A former dean and in 1971. He served in the U.S. Marine Corps in professor emeritus at the University of Cali- the Pacific theater during WWII. He received Robert B. Kittredge ’48 of Cumberland fornia, Berkeley’s Haas School of Business, the Bronze Star for service at Guadalcanal Foreside, Maine, died Jan. 20, 2004. Formerly he was known for his groundbreaking work and was honorably discharged with the rank of Winchester, Mass., he was longtime chief on corporations and social responsibility. He of major. He returned to the Marines as a legal counsel for the investment law firm of joined UC Berkeley’s business school as an legal officer during the Korean War and Loomis, Sayles & Co. He also was president of instructor in 1948. Named a professor in 1959, became a lieutenant colonel at the age of 31. the company’s mutual funds and served on he began teaching a course on the political, the governing boards of both the mutual fund legal and social environment of business with Thomas J. Carens ’48 of Wellesley, Mass., and investment counsel trade associations. Earl F. Cheit. Their work was the foundation died Nov. 28, 2003. A senior partner at Roche, For several years, he was president and for the Business and Public Policy Group at Carens & DeGiacomo in Boston, he began his chairman of the Investment Counsel Associa- the school, a group Votaw chaired from 1972 career with the firm in 1948 when it was tion of America. He previously practiced at to 1980. He wrote and edited books on busi- known as McGuire & Roche. He practiced Ely Bartlett. During WWII, he served as a ness and public policy, including “Legal civil and real estate law and was a member of commanding officer of a minesweeper in the Aspects of Business Administration” and the Massachusetts Conveyancers Associa- Panama Canal. “The Corporate Dilemma.” During WWII, he tion, the town of Wellesley’s Permanent was a lieutenant and communications officer Building Committee and the Harvard Club of F. Benjamin MacKinnon ’48 of Sanibel, in the U.S. Navy. Boston. He was president of the Clover Club Fla., died April 29, 2003. of Boston in 1981. He served in the U.S. Army Charles Biddle ’48-’49 of Princeton, N.J., Air Forces during WWII. William S. Marshall ’48 of Miami died Sept. died Nov. 1, 2003. An executive with Interna- 8, 2003. He practiced corporate law in Miami tional Flavors & Fragrances in New York City, John L. Casey ’48 of Quogue, N.Y., died at the Law Offices of William S. Marshall. he joined the company as a management Feb. 9, 2004. A managing director at Scudder, trainee in 1961 and went on to serve as area Stevens & Clark, he worked at the investment John H. Montgomery Jr. ’48 of Edgar- president of North America, Europe, Africa firm for over 30 years. He published two town, Mass., died July 16, 2003. An interna- and Asia. He retired in 1985 as a corporate business ethics books, “Ethics in the tional aviation lawyer in New York City for 20 vice president. He served in the U.S. Air Financial Marketplace” and “Values Added,” years, he moved to Martha’s Vineyard in 1969 Force as a pilot and navigator. and was the first executive fellow at the and was a sole practitioner, focusing on Bentley College Center for Business Ethics. probate and real estate law. Eugene E. Anderson Jr. ’49 of Haverford, He was also president and chairman of the Pa., died Aug. 24, 2003. He was senior board of trustees of Saint David’s School Paul Cushing Sheeline ’48 of Lloyd counsel for Penn Central Corp., where he in New York. He served in the U.S. Navy Harbor, N.Y., died Aug. 6, 2003. He was specialized in real estate. during WWII. chairman and CEO of Intercontinental Hotels Corp. in New York City and of counsel to Mason L. Bohrer ’49 of Winnetka, Ill., died Kendall M. Cole ’48 of Naples, Fla., died Verner, Liipfert, Bernhard, McPherson & Dec. 8, 2002. He practiced law mostly in Sept. 28, 2003. He was vice president and Hand in Washington, D.C. A director of Pan Winnetka and Chicago until his retirement. general counsel for Eastman Kodak Co. and Am Corp. and National Westminster Bank, In the 1970s, he taught at the John Marshall General Foods Corp., and was a director of U.S.A., he was also a member of President Law School in Chicago, and from 1957 to 1964, several organizations, including Fleet Bank Ronald Reagan’s Board of Advisors on he practiced law in Missoula, Mont. He and Allendale Columbia School, a college Private Sector Initiative. He was a trustee of served in the U.S. Army Signal Corps in preparatory day school in Rochester, N.Y. St. Luke’s-Roosevelt Hospital Center in New Australia and the Philippines during WWII. During WWII, he served in the Pacific York City and the Camargo Foundation in

summer 2004 harvard law bulletin 77 IN MEMORIAM

James A. Brink ’49 of New Castle, N.H., the past few years, he was of counsel to Angels’ Game: A Handbook of Modern died Sept. 22, 2003. He was a partner at Hale MacLean Holloway Doherty Ardiff & Morse Diplomacy.” He was a founding member of and Dorr in Boston, specializing in estate in Peabody. Active in the Beverly community, the American Academy of Diplomacy, a planning and administration. A recovered he was named a Paul Harris Fellow by the trustee emeritus at the Carnegie Endowment alcoholic, he was co-founder of Lawyers Beverly Rotary Club and received the Man of for International Peace and a member of the Concerned for Lawyers, a statewide program the Year Award from the Beverly B’nai B’rith. board of overseers at the Hoover Institution designed to assist Massachusetts lawyers During WWII, he served in the U.S. Army on War, Revolution and Peace, Stanford impaired as a result of alcoholism or Air Forces. University. During WWII, he served in the substance abuse. He oversaw the employee U.S. Marines, in the Office of Strategic Serv- assistance program and 12-step meetings at Morton Greenspan ’49 of Metuchen, N.J., ices, and twice parachuted into France to Hale and Dorr and was a member of the died Oct. 1, 2003. He was of counsel at Kroll & work with the French Underground. Supreme Judicial Court’s Standing Tract in New York City. A member of the Committee on Substance Abuse. He also was Executive Advisory Commission on Insur- Charles E. Pierson ’49 of Akron, Ohio, vice chairman of the Board of Bar Overseers, ance Industry Regulatory Reform, he was died Nov. 18, 2003. A trial lawyer specializing and for nearly 20 years, he was president of also deputy superintendent and general in malpractice and product liability, he was a the Social Law Library. During WWII and counsel of the New York State Department of partner at Buckingham, Doolittle & the Korean War, he served in the U.S. Navy as Insurance from 1975 to 1981. Burroughs in Akron. Earlier in his career, he a submariner. From 1952 to 1965, he was practiced at Herberich, Rowley, Taylor & active in the U.S. Naval Submarine Reserve. Arthur D. Jackson ’49 of Falls Village, Pierson. He was president of the Akron Bar Conn., died Feb. 10, 2003. He was vice presi- Association and a fellow of the American Robert S. Burton ’49 of Shaker Heights, dent of U.S. Trust Company of New York City. College of Trial Lawyers. He was president of Ohio, died Aug. 4, 2003. He joined what the Akron Art Museum and the Torch Club became Arter & Hadden after graduating Arthur F. Koskinas ’49 of Worcester and and helped found and served as president of from HLS and specialized in small corpora- Osterville, Mass., died Nov. 3, 2003. An Friends of Hower House, a Victorian-era tions, contracts and estate planning. He attorney for over 50 years, he was a partner at home. As president of the Summit County retired as a partner in 1985. He was vice pres- Koskinas and Langella in Worcester. He was Historical Society, he worked to restore the ident of United Way, a board member of the president of Lincoln Ventures and senior Simon Perkins Mansion, a Greek Revival Federation for Community Planning and partner at JEDCO Investments. Early in his home built by the son of one of Akron’s co- chairman of the Shaker Heights Citizens career, he was an assistant city solicitor for founders. He served in the U.S. Army Air Committee. A Marine Corps fighter-bomber the city of Worcester. He served on the board Forces as a B-29 crew member during WWII. pilot, he flew 50 combat missions against of the UMass Memorial Foundation, and in Japanese forces in the Pacific. He also served 2001, he and his wife endowed a professor- Seymour E. Podolsky ’49 of Detroit died as a reserve during the Korean War. His ship in biochemistry and molecular pharma- Jan. 26, 2004. He was a partner in his family’s father was U.S. Supreme Court Justice cology at the University of Massachusetts beer and wine wholesale business in Wyan- Harold Hitz Burton ’12. Medical School. During WWII, he served in dotte, Mich. He was named to the Michigan the U.S. Army Air Forces. Liquor Control Commission in 1991 and Rolf G. de Leuw ’49 of St. Louis died Nov. served as an administrative law judge and 8, 2003. He was counsel and corporate secre- John S. Macdougall Jr. ’49 of Haverhill, administrative commissioner until his retire- tary of the International Shoe Company in St. Mass., died July 24, 2003. He was a justice of ment in 1999. He practiced law for four years Louis. He and his wife were supporters of the the Dukes County Probate and Family Court before joining the family business. During Humane Society of Missouri, the Animal on Martha’s Vineyard and an associate WWII, he served in the U.S. Army Air Forces Protective Association of Missouri and the St. justice of Middlesex County Probate and as a lieutenant in Australia and the Philip- Louis Zoo. During WWII, he served in the Family Court in Cambridge. Earlier in his pines. U.S. Army. career, he worked at Holland, Johnson & Hays in Boston. He later became a partner at James E. Quinn ’49 of Newton, N.J., died Edward A. Friend ’49 of San Francisco Soroka, McDonald, Davis & Macdougall in Dec. 7, 2003. He was an attorney with Morris, died Aug. 31, 2003. A San Francisco litigator Haverhill. A fellow of the American College Downing & Sherred in Newton and a supe- and sole practitioner, he practiced civil law of Trust and Estate Counsel, he was also a rior court judge from 1977 to 1982. After for 53 years. He was a lifelong member of the trustee and finance committee member of the retiring, he served as a municipal court judge English-Speaking Union, and he was fluent Pentucket Bank in Haverhill and a finance for several New Jersey townships. He was the in Japanese; was conversant in French, committee member of both Griffin White first chairman of Newton Housing Authority German and Latin; and spoke some Russian Home, a retirement community, and the First and president and board chairman of and Korean. He was trained as an intelligence Congregational Church. Newton Memorial Hospital, helping develop officer and mastered Japanese in the U.S. three expansion plans for the hospital over Army, where he served as a second lieutenant William B. Macomber Jr. ’49 of five decades. During WWII, he served four under Gen. Douglas MacArthur during the Nantucket, Mass., died Nov. 19, 2003. He was years as a captain in the U.S. Army Air occupation of Japan. After graduating from a U.S. ambassador to Jordan and Turkey and Forces in the Pacific theater. HLS, he joined the U.S. Army Reserve, president of the Metropolitan Museum of Art earning the rank of major and retiring in in New York City. He worked in the U.S. State William V. Roth Jr. ’49 of Wilmington, 1966. Department during five presidential admin- Del., died Dec. 13, 2003. A senator from istrations, beginning with Eisenhower’s, and Delaware, he served five terms in the U.S. Bertram Glovsky ’49 of Beverly, Mass., served as undersecretary for management Senate and created the retirement account died Jan. 3, 2004. For 53 years he was an from 1969 to 1973. Earlier in his career, he known as the Roth IRA in 1997. A champion attorney, practicing with his father and taught government at Boston University and of tax cuts, he was chairman of the Finance brother at Glovsky & Glovsky in Beverly. For spent two years with the CIA. He wrote “The and Governmental Affairs committees and

78 harvard law bulletin summer 2004 IN MEMORIAM oversaw inquiries into abuses by the Internal Faculty Award for Outstanding Teaching for maternal grandfather and a longtime Revenue Service and Pentagon overspending. the entire university in 1995. He previously member of the Minnesota state legislature. He wrote a book about the IRS in 1999, “The taught at Antioch School of Law in Wash- During WWII, he served with the Medical Power to Destroy.” Prior to losing his seat for ington, D.C., and Valparaiso University Administrative Corps in India and Burma. a sixth term, he was one of the longest- School of Law in Indiana. A civil rights tenured politicians in Delaware’s history and activist, he assisted with voter registration in Jerome J. Gelman ’50 of Hackensack, the state’s longest-serving U.S. senator. He Mississippi in 1964; was instrumental in the N.J., died Jan. 12, 2004. Formerly of Teaneck served two terms in the U.S. House of Repre- campaign of Richard Hatcher, the first and Paterson, N.J., he was an attorney sentatives beginning in 1966 before winning a African-American mayor of a major U.S. city; with Gelman & Gelman in Elmwood Park seat in the Senate. During WWII, he served and was a founder of the Gary, Ind., chapter for 50 years. He was president of the in a U.S. Army intelligence unit in the South of the ACLU. During WWII, he served as an Paterson Rotary Club, trustee of the Botto Pacific and received the Bronze Star. ensign in the U.S. Navy. House American Labor Museum and counsel member of the Order of the Golden Edward M. Rothman ’49 of Studio City, Philip L. Winter ’49 of Jensen Beach, Fla., Chain. He served in the U.S. Army during Calif., died July 20, 2003. An entertainment died June 24, 2003. Formerly of Larchmont, WWII. lawyer for 41 years, he was a longtime N.Y., he practiced with Bohan, Trask, Bohan Universal Pictures executive and served as & Winter in Larchmont for more than 30 William T. Munson ’50 of Falmouth, vice president of MCA Inc. He also held exec- years. He practiced entertainment law in Mass., died Sept. 28, 2003. A partner at utive positions with 20th Century Fox and New York City before moving his practice to Munson Lebherz & Turkington in ZIV TV. Larchmont and later Estes Park, Colo. He Falmouth, he specialized in real estate and served in the U.S. Army as a Japanese inter- probate. He was chairman of the board of Edward L. Springer ’49 of Coraopolis, Pa., preter during WWII. assessors in Falmouth and board of trustees died Sept. 19, 2003. He was a managing of the Falmouth Public Library for 25 years. partner for Springer Bush & Perry in Pitts- Walter E. O’Leary ’49-’50 of Berkeley, During WWII, he served in the U.S. Army burgh. Calif., died July 19, 2003. Formerly of White Air Forces, attaining the rank of master Plains, N.Y., he was an attorney in White sergeant. N. Ferebee Taylor ’49 of Chapel Hill, N.C., Plains. died Feb. 24, 2004. He was chancellor of the Anthony P. Nugent Jr. ’50 of Kansas City, University of North Carolina at Chapel Hill Charles F. Whittemore ’49-’51 of Mo., died Dec. 23, 2003. He was a judge for from 1972 to 1980. He practiced corporate law Manchester, N.H., died Oct. 20, 2003. He was the Missouri Court of Appeals, Western in New York City for almost two decades president and CEO of Catholic Medical District. He unsuccessfully fought his before joining the university as a visiting law Center in Manchester and a longtime public mandatory retirement from the court at age professor in 1968. After his tenure as chan- servant. He served as a school district moder- 70 all the way to the U.S. Supreme Court. cellor, he was a full-time law professor until ator and chairman of the Municipal Budget Previously, he served as assistant U.S. 1991. During WWII, he served in the U.S. Committee, and he was moderator for the attorney in Kansas City. In the mid-1960s, he Navy. town of Pembroke from 1972 to 1989. He was was with the appellate section of the Crim- the first director for the Federal Housing inal Division of the U.S. Department of Thomas W. Underhill ’49 of West Authority of New Hampshire from 1964 to Justice in Washington, D.C., and was a Chatham, Mass., died June 26, 2003. 1967, before serving as New Hampshire’s member of the attorney general’s committee commissioner of health and welfare. He was to review and evaluate the criticisms of the Robert J. Ward ’49 of New York City died president of the Manchester Historic Associ- Warren Commission Report. During WWII, Aug. 5, 2003. For more than 30 years, he was ation and served in executive positions on the he was a medic in the U.S. Army and served a federal judge for the U.S. District Court for Havenwood-Heritage Heights Retirement in five campaigns in France and Germany. the Southern District of New York, appointed Communities Trust Fund. Earlier in his He was wounded in Normandy and again in to the court in 1972 by President Richard career, he taught government and adminis- the Battle of the Bulge and was awarded the Nixon. He presided over nationally promi- tration at a number of colleges and universi- Bronze Star and the Purple Heart with oak nent lawsuits that included charges of illegal ties. During WWII, he served in the U.S. leaf cluster. interference with abortion rights against the Army. anti-abortion group Operation Rescue and George D. Reycraft ’50 of Key Largo, Fla., accusations of plagiarism against the author Frederick B. Grill ’49-’53 of New York City died March 1, 2004. Formerly of Pelham of “Roots,” Alex Haley. Previously, he was an died Oct. 19, 2003. He had a general law prac- Manor, N.Y., he was a longtime principal of assistant district attorney in Manhattan and tice in New York City. Cadwalader, Wickersham & Taft. He liti- an assistant U.S. attorney in the Southern gated complex corporate cases, including an District, where he was later chief of the civil 1950-1959 investors’ suit challenging the accounting division. He served in the U.S. Navy from practices of Arthur Andersen and an 1944 to 1946. William P. Everts Jr. ’50 of Mill Valley, investors’ complaint against Ivan F. Boesky Calif., died Dec. 3, 2003. For 25 years he and his main underwriter. Reycraft retired Burton D. Wechsler ’49 of Washington, worked in the law department of U.S. Steel in 1994 as co-chairman of the firm and D.C., died Jan. 19, 2004. He was professor Corp. He also taught at San Francisco Law chairman of the litigation department and emeritus at American University’s Wash- School and Hampton University. Earlier, he became vice chairman and later chairman of ington College of Law, where he taught practiced at Johnson, Clapp, Ives & King in M.A. Schapiro & Co., a bank securities constitutional law, federal courts and First Boston and served with the Atomic Energy dealer. Earlier in his career, he was a trial Amendment law for 20 years. Honored as Commission in Richland, Wash. After lawyer with the U.S. Department of Justice, “Outstanding Teacher” for the college of law retiring, he wrote a biography, “Stockwell of rising to chief of the special trial section in many times, he received the Outstanding Minneapolis,” on S.A. Stockwell, his 1958. The following year, he was the federal

summer 2004 harvard law bulletin 79 IN MEMORIAM government’s chief litigator in an antitrust partner at Squire, Sanders & Dempsey in Sullivan & Cromwell in New York City. He confrontation with E.I. du Pont de Nemours Cleveland. retired in 1992 and was named senior & Co. and General Motors. He served as a counsel. major in the U.S. Army Air Forces during Armand A. Korzenik ’51 of Hartford, WWII and in the U.S. Air Force in the Conn., died July 17, 2003. A city official and a Leonard H. Monroe ’52 of Burbank, Korean War. Hartford lawyer for 50 years, he was a long- Calif., died Aug. 16, 2003. time member of the Democratic town Palmer Smith ’50 of Seattle died Feb. 11, committee. He worked as an assistant Roy H. Scharf ’52 of Guilford, Conn., died 2004. For over 40 years he practiced law in corporation counsel and was a member of Jan. 10, 2004. He practiced real estate law in Seattle as a partner at Cary, Durning, Prince the Hartford Board of Education and the Branford and was a member of the & Smith and Smith, Brucker, Winn & city’s redevelopment agency. He also was a Connecticut Bar Association for 50 years. Ehlert. He was later a sole practitioner. He chairman of the Greater Hartford United Since the mid-1960s, he concentrated his worked on legislation prohibiting racial Negro College Fund. A member of the practice on representing real estate discrimination in housing in Seattle and Mount Moriah Baptist Church, he donated builders, developers, investors and mort- Washington state, drafted the first abortion- his legal services to the church for 40 years. gage companies. He was working toward a rights legislation in Washington state in the He was a brigadier general with the Air master’s degree in urban planning at late 1960s and served on a number of boards National Guard and a colonel with the U.S. Southern Connecticut State University. and committees related to fair housing, Air Force. He served in WWII and the human services and civil rights. He studied Korean War. Alexander M. Vagliano ’52 of Norfolk, Japanese and Malay languages in the U.S. Conn., died Nov. 13, 2003. An executive with Navy and served at the Joint Naval Intelli- George S. Leisure Jr. ’51 of Sea Island, J.P. Morgan & Co., he was involved in the gence Center. Ga., died Aug. 25, 2003. A courtroom negotiations for the return of American litigator who worked in corporate and hostages from Iran, one of whom was his Philip H. Suter ’50 of Concord and antitrust law, he was a longtime partner at cousin, Moorhead Kennedy ’58 (’59). As Chatham, Mass., died Dec. 23, 2003. He Donovan, Leisure, Newton & Irvine in head of Morgan Guaranty Trust Company’s practiced for four decades at Sullivan & Manhattan. His clients included Howard international banking division, in 1981, he Worcester in Boston, where he was a Hughes, American Cyanamid and Walt joined a group of bank executives who were partner specializing in estate planning and Disney Co. Earlier in his career, he worked negotiating the release of Iranian assets administration. He was a Concord for the CIA, was an assistant U.S. attorney from American banks. Before joining J.P. selectman from 1972 to 1978 and led the for the Southern District of New York and Morgan, he worked at White & Case. In the town’s 1975 bicentennial celebration, helping was a trial lawyer in the Antitrust Division 1980s, he received the rank of Chevalier de organize the April 19 event attended by of the U.S. Department of Justice in New l’Ordre des Arts et des Lettres from the more than 110,000 people, including Presi- York City. He was president of the Federal French government for his work promoting dent Gerald R. Ford. He was a chairman of Bar Council and a fellow of the American French-American culture. the town’s planning board and zoning board College of Trial Lawyers. During WWII, of appeals, as well as a member of the he served in the U.S. Navy and again Aram Jack Kevorkian ’53 of Paris died boards of Concord Academy, the Concord during the Korean War as a lieutenant on Dec. 20, 2003. An American lawyer in Paris Museum and Concord Friends of the Aging. destroyers. for more than 40 years, he wrote a monthly During WWII, he was a field artillery newsletter on the spirit of French law. He platoon commander and served in the Office John P. Persons LL.M. ’51 of Norfolk, started “The Kevorkian Newsletter” in 1978 of Strategic Services. Conn., and Vero Beach, Fla., died Jan. 29, and eventually sent it to 3,000 people in 72 2004. Formerly of Scarsdale, N.Y., he prac- countries. A collection of his newsletters, David P. Templeton ’50 of Lake Oswego, ticed at Patterson, Belknap & Webb in New “Confessions of a Francophile,” was Ore., died July 2, 2003. He was a partner York City for over 40 years, focusing on published in 2002. Early in his career, he and later of counsel at Martin, Bischoff, general corporate law with a specialty in worked on Wall Street for Dewey Ballantine. Templeton, Langslet & Hoffman in tax. He began his legal career in the chief In 1966, he established his own law firm, Portland. He joined the firm 1958, practicing counsel’s office of the Internal Revenue advising international companies on busi- civil litigation until his retirement in the Service in Washington, D.C. He was a ness law. He served in the U.S. Army Judge 1990s. He served in the U.S. Army during trustee of the Shelburne Museum in Advocate General’s Corps. WWII with the 95th Infantry Division. Vermont, president of the Scarsdale Friends of the Parks and a longtime member of the Herbert Semmel ’53 of Los Angeles died Ralph Stephen Carrigan ’51 of Houston Harvard Club of New York City. Feb. 5, 2004. A longtime civil rights died Sept. 16, 2003. An attorney with Baker attorney, he was founder and director of the Botts in Houston, he joined the firm in 1951 Joseph H. Wishod ’51 of Delray Beach, Federal Rights Project of the National Senior and retired as a senior partner after 40 years Fla., died Dec. 5, 2003. He practiced law Citizens Law Center in Los Angeles, where there. He later joined his two sons in their with Cahn Wishod & Lamb in Melville, N.Y., he worked for about 10 years. The Federal respective Houston firms, Carrigan Lapin & and earlier with Wishod & Fisch in Rights Project has been renamed in his Landa and Sydow & Carrigan, as of counsel. Manhattan. He served in the U.S. Merchant honor. He was previously director of the He was president of the Houston Bar Asso- Marines from 1945 to 1946. Center for Law and Social Policy in Wash- ciation and a member of the American ington, D.C., and litigation director of New College of Trial Lawyers. He served in the Avukat Yahya Muvaffak Kavrar ’51-’52 York Lawyers for the Public Interest. He U.S. Army Air Corps as a second lieutenant. of Mersin, Turkey, died Feb. 27, 2003. taught at seven law schools and wrote three books, including “New Approaches in the Robert H. Gillespy II LL.M. ’51 of Chagrin William J. Kirby ’52 of Forest Hills, N.Y., Law of Civil Procedure.” Last year he Falls, Ohio, died Jan. 28, 2004. He was a died Nov. 22, 2003. He was a partner at received the Reginald Heber Smith Award

80 harvard law bulletin summer 2004 IN MEMORIAM from the National Legal Aid & Defender Wooden & McLaughlin in Indianapolis and died Feb. 16, 2004. Formerly of Long- Association and the Felix A. Fishman Campbell Kyle Proffitt in Carmel. meadow, he practiced law in Springfield for Award for Public Service from New York 40 years, retiring from Egan, Flanagan and Lawyers for the Public Interest. Edgar W. Bassick III ’55 of Stratford, Cohen in the late 1990s. From 1975 to 1978, Conn., died Oct. 31, 2003. He was a Superior he served as a judge of the District Court of John P. Dunn ’54 of Chatham, Mass., died Court judge and a partner at Pullman & Springfield, and he was president of Mc - Sept. 15, 2003. A corporate, banking and Comley in Bridgeport, where he specialized Kinstry Inc. in Chicopee for over 30 years. estate planning attorney, he practiced law in family law. He was nominated to the He was president of the Hampden County for nearly 50 years and was a founding court by former Gov. William O’Neill in Bar Association, chairman of the Massachu- partner of Dunn McGee & Allen in 1986. He served in the U.S. Army from 1946 setts Board of Bar Overseers and a member Worcester. For 13 years, he was town moder- to 1948. of the Judicial Nominating Council for ator for Shrewsbury. In 1962, he tried a labor Western Massachusetts. law case before the U.S. Supreme Court. He Daniel H. Kossow ’55 of Armonk, N.Y., began his career with Vaughn, Esty, Crotty died March 15, 2004. He was an entertain- Joseph T. Conlon Jr. ’57 of Farmington, & Mason, becoming senior partner of its ment lawyer in New York City for many Mo., died Oct. 13, 2003. He was a professor successor firm. He was a trustee of years and most recently had a law office in emeritus at St. Louis University. He also Worcester Academy and a director of Pepsi- White Plains. taught at the University of Notre Dame and Cola Bottling Co. of Worcester. was a prosecuting attorney of Lincoln H. David Leventhal ’55 of Hartford, County, Mo. During the Korean War, he was Andrew E. Norman ’54 of Palisades, N.Y., Conn., died March 24, 2004. An attorney for a U.S. Army correspondent for The Stars died Feb. 7, 2004. A journalist, philanthro- 50 years, he practiced at Brown Raysman and Stripes newspaper. pist and publisher, he served as a financier Millstein Felder & Steiner in Hartford. He and consultant to HealthDay, a health news was a fellow of the American College of Real Herbert L. Spira ’57 of Washington, D.C., content provider to various media and Estate Lawyers and chairman of the real died Sept. 9, 2003. He was tax counsel for health care organizations. He worked for the property section of the Connecticut Bar the Independent Community Bankers of Newark News and Current magazine in the Association. He co-wrote “The Connecticut America and for the Subcommittee on Inter- late 1950s and became part owner of Chelsea Common Interest Ownership Manual,” national Development of the House Banking House Publishers in 1968. He and his wife, published by the Connecticut Bar Associa- Committee. For 18 years, he was tax and Helen Dwelle Davis, an artist and minia- tion, and was a lecturer at the University of chief counsel of the U.S. Senate Committee turist, ran the Hudson River Dollhouse Co. Connecticut School of Law. on Small Business and Entrepreneurship. He was involved with the NAACP Legal After retiring in 1998, he composed song- Defense and Educational Fund and the Edward G. Bauer Jr. ’57 of Boca Raton, books, including a “History of American American Civil Liberties Union. He was also Fla., died Oct. 1, 2003. He was a city solicitor Patriotic Songs” and “A Sentimental Journey chairman of the Norman Foundation and a for Philadelphia in the 1960s and general Around Scotland in Poetry and Song.” founding member of the National Network counsel for Philadelphia Electric Co., now of Grantmakers, and he helped develop the Peco Energy Co., beginning in 1970. From Richard C. Torbert ’57 of Philadelphia Big Apple Circus and Rockland County 1978 to his retirement in 1988, he was senior died Oct. 7, 2003. A longtime resident of Community College. vice president and general counsel at the Center City, Pa., he was vice president of company. He was also an attorney for the Girard Bank in Philadelphia, where he Donald E. Sanford Jr. ’54 of Buffalo, N.Y., Delaware Valley Regional Planning worked for 27 years. He previously worked died Feb. 13, 2004. For 28 years, he was an Commission. He served on Philadelphia’s for Irving Trust Co. in New York. He helped estate and gift tax attorney for the Internal Bicentennial Commission and on the boards found the Friends of the Free Library and, Revenue Service. Earlier in his career, he of the Defenders Association, the American in the 1980s, helped develop the Mayor’s worked at Williams, Stevens & McCarville Foundation for Negro Affairs and the Amer- Commission on Literacy and the Center for and in the trust department of Liberty Bank. ican Heart Association of Southeastern Literacy, all in Philadelphia. From 1951 to He served in the U.S. Army in Germany for Pennsylvania. During the Korean War, he 1954, he served in the U.S. Air Force in two years. served in the U.S. Air Force in San Antonio. Munich, Germany.

Robert M. Spaulding ’54 of Buffalo, N.Y., Charles C. Cabot Jr. ’57 of Dover, Mass., C. Robertson Trowbridge ’57 of Peter- died July 15, 2003. He was a longtime died Sept. 9, 2003. He was of counsel at borough, N.H., died Sept. 8, 2003. A state Buffalo -area attorney, specializing in bank- Sullivan & Worcester in Boston, where he legislator and publisher of Yankee maga- ruptcy law at Phillips, Lytle, Hitchcock, practiced trust and estates and business law zine, he joined the publication in 1964, was Blaine & Huber. Joining the firm after grad- beginning in 1966. Previously, he practiced named president in 1970 and became uating from HLS, he led its commercial in the counsel’s office of the U.S. Informa- chairman in 1989. When he joined the bankruptcy practice and served as tion Agency. Since 1970, he was a member of company, the publication’s circulation was chairman of its management and governing the Conservation Law Foundation, 100,000. Under his leadership, circulation committees. He lectured on bankruptcy becoming a director in 1981 and chairman of increased to more than 1 million by the mid- before the ABA and ALI and was listed in the board of trustees in 1991. A trustee of 1980s, and the company expanded from its every edition of “The Best Lawyers in Milton Academy and the Neighborhood two main publications, Yankee magazine America” since its first publication. House Charter School in Dorchester, Mass., and the Old Farmer’s Almanac, to a multi- he was also selectman for the town of Dover million-dollar publisher of business maga- Thomas D. Titsworth ’54 of Carmel, Ind., for many years. During WWII, he served in zines, books and other periodicals. During died July 8, 2003. For 40 years, he practiced the U.S. Navy. his career, he served in both state legislative law with Bamberger & Feibleman in Indi- houses and was chairman of the House anapolis. He continued his law practice at Charles S. Cohen ’57 of Orleans, Mass., Ways and Means Committee and the Senate

summer 2004 harvard law bulletin 81 IN MEMORIAM

Finance Committee. He was town moder- He was awarded the Distinguished Flying School for the Blind in Philadelphia begin- ator for Dublin, N.H., for 26 years, served on Cross, Silver Star and Purple Heart. After ning in 1970, he was named a Distinguished the boards of the Society for the Protection the war, he remained in the Air Force Alumnus of the school. of New Hampshire Forests and the National Reserve, retiring as a lieutenant colonel in Trust for Historic Preservation, and was a 1966. Alexander M.S. McColl ’60 of Boulder, founder of the Trust for New Hampshire Colo., died Oct. 23, 2002. He was a director Lands. Duane T. Sargisson ’58 of Worcester, of special projects for Omega Group, Mass., died Sept. 4, 2003. A partner at publishers of Soldier of Fortune magazine, Eudore J. Fontaine Jr. ’58 of Wellesley, Bowditch & Dewey in Worcester, he was an and founder and president of Refugee Relief Mass., died Jan. 13, 2004. An artist, he expert in Massachusetts on the National International, a nonprofit medical and relief painted Impressionist paintings of city Labor Relations Act and other federal and agency. In the early 1970s, he was president scenes and depictions of Boston and Rhode state labor laws. Beginning in 1964, he of Humphrey-Stone-McColl Corp., a natural Island landscapes. In 1996, he was commis- served two terms in the Massachusetts gas drilling and production business, and he sioned by the Boston Athletic Association to House of Representatives. He was counsel later established an investment firm. design a lithograph to commemorate the for the University of Massachusetts Medical Commissioned as a special agent in the 100th anniversary of the Boston Marathon. School and town counsel for the towns of Counter Intelligence Corps, he served four He practiced law until the early 1970s, when Barre and Petersham. In the 1990s, he was years in the U.S. Army before coming to he devoted himself to painting. He served as on the governor’s Judicial Nominating HLS. After practicing law for three years, he a communications officer in the U.S. Navy. Council for Central Massachusetts. He was returned to active duty and served two tours a trustee and president of the board of in Vietnam. He remained active in the U.S. Laurence J. Hoch ’58 of Hull, Mass., Worcester City Hospital and Worcester Army Reserve Special Forces and retired as and Key Colony Beach, Fla., died June 18, Academy. A member of a number of heredi- a full colonel, U.S. Army Reserve, in 1984. 2003. He was an admiralty attorney at Hoch tary and patriotic societies, he served three He wrote two novels based on his experi- & McHugh in Boston and a commander in terms as chancellor general of the National ence in Vietnam, “Valley of Peril” and the U.S. Coast Guard, where he served for Society of the Sons of the American Revolu- “Maccat.” 25 years. He was a treasurer and director tion, receiving the organization’s highest of the U.S. Coast Guard Foundation and in honor, the Minuteman Award. He served in Theodore L. Tolles ’60 of New Hartford, 1997 received the foundation’s Distinguished the U.S. Army. N.Y., died Feb. 7, 2004. A businessman and Service Award. He also was an officer of lawyer in New York City and Utica, N.Y., he the International Goodwill Foundation, Mendel Small ’58 of Overland Park, Kan., worked for a number of companies before president of the U.S. Navy League’s Boston died Dec. 18, 2003. He was a partner at joining the law firm of Kowalczyk Tolles & chapter, and a member of the Boston Spencer Fane Britt & Browne for over 25 Deery in 1991. He was active in local and Marine Society and the Propeller Club of years, specializing in bankruptcy law. He state politics and served as a Democratic Boston. previously served as a general practitioner committeeman for the town of New Hart- in Kansas City for 13 years. He wrote a ford, Oneida County and New York state. He Jeremiah Marsh ’58 of Winnetka, Ill., died chapter of the Missouri Bar Continuing was a trustee of Utica College and the House Jan. 19, 2004. An expert on Illinois state law Legal Education treatise on assignment for of Good Shepherd. He served in the U.S. and a partner at Ungaretti & Harris in the benefit of creditors and received the Army from 1960 to 1961. Chicago since 2001, he was previously co- 2003 Michael R. Roser Excellence in Bank- chairman of Hopkins & Sutter in Chicago. ruptcy Award from the Missouri Bar Asso- Sergius M. Boikan ’61 of San Francisco Earlier in his career, he was a legislative ciation’s commercial law committee. He was died July 20, 2003. He was a sole practi- aide to Massachusetts Sen. Edward chairman of the Beth Shalom Cemetery tioner in San Francisco, specializing in Kennedy and later general counsel to Illi- committee and a member of the Jewish public utility law and transportation nois Gov. Richard Ogilvie, helping to estab- Community Relations Board. regulation. lish the Illinois income tax and redraft the state’s constitution. He served on the Thomas L. Cantrell ’59 of Dallas died Nov. Wesley B. Smith ’61 of Ridgewood, N.J., National Commission on Uniform State 13, 2003. He practiced patent, trademark died Feb. 5, 2004. Formerly of Rutherford Laws and on the board of overseers of the and copyright law as of counsel at Jenkens & and Succasunna, N.J., he worked at Smith & Chicago-Kent College of Law, Illinois Insti- Gilchrist in Dallas. He previously practiced Ely in Rutherford. Early in his career, he tute of Technology. at Johnson & Gibbs in Dallas. worked at Dewey Ballantine.

Philip E. Peterson LL.M. ’58 of Lewiston, 1960-1969 Stuart D. Buchalter ’62 of Los Angeles Idaho, died Dec. 29, 2003. A professor emer- died Jan. 6, 2004. A corporate and securities itus and dean at the University of Idaho Eugene G. Coombs Jr. ’60 of Boston died attorney, he was of counsel at Buchalter College of Law, he joined the faculty in 1952, Jan. 13, 2004. He practiced insurance law as Nemer Fields & Younger in Los Angeles, served as dean from 1961 to 1966 and retired a partner at Kilburn Casey Goscinak & where he worked for 40 years. He served as in 1990. An expert on Idaho’s tax law, he Coombs in Boston. the firm’s managing partner during the wrote many of Idaho’s sales tax and income 1970s and was co-chairman of its business tax laws and co-wrote the Uniform Probate Rudolph V. Lutter Jr. ’60 of Washington, practices group at the time of his death. He Code to standardize probate procedures D.C., died Dec. 14, 2003. He taught commu- also taught securities regulation at the between states. During WWII, he was a B- nications law at Howard University School UCLA School of Law. He was a director on 29 navigator with the U.S. Army Air Forces. of Communications and was a senior many corporate boards, including City He was involved in the fire bombing of attorney adviser to the Federal Communica- National Corp. and the Warnaco Group. Japan and helped provide transport for tions Commission for 18 years. A member of Early in his career, he served as special Chinese Nationalist leader Chiang Kai-shek. the board of managers for the Overbrook counsel to the Securities and Exchange

82 harvard law bulletin summer 2004 IN MEMORIAM

Commission in Washington, D.C. He also died Sept. 30, 2003. A labor and employ- dent of the Waltham Rotary Club and the served as chairman of the board of trustees ment law specialist, he was a senior partner Concord Chamber of Commerce and was a of Otis College of Art and Design in Los at Gibson, Dunn & Crutcher in Los Angeles. board member of the Orchard House in Angeles and as president of the Jewish He left the firm in 1970 for two years to serve Concord, the Acton Chamber of Commerce Community Foundation of Greater Los as chief legislative assistant to California and the United Way of Acton. He also Angeles. Sen. John V. Tunney, helping draft the Water served as president of the Central Middlesex Quality Act. He served on the Management Bar Association in 1979 and 1980. David L. Fishman ’64 of Belmont, Mass., Advisory Committee of the National Labor died Feb. 14, 2004. A management Relations Board from 1994 to 1998, was the 1970-1979 consultant, he established a media and founding chairman of the American entertainment consulting practice at Arthur Employment Law Council and held leader- George B. Reid Jr. ’74 of McLean, Va., D. Little in the 1970s and was serving as its ship positions in the ABA. He was a senior died Oct. 3, 2003. He was a co-founder of director and vice president when he left in editor of the “California Employment Litiga- Pitts Bay Partners, an advisory firm, and 1994. He briefly worked at EDS/AT Kearney tion Practice Guide” and editor in chief of was chief executive of Bacardi Ltd. In 1974, before forming his own firm, Centre Advi- the “Five-Year Cumulative Supplement to he joined Covington & Burling in Wash- sory Services, in Belmont. He wrote film Employment Discrimination Law.” In 1996, ington, D.C., and he became a partner in scripts and was a board member of Vision- he was elected a fellow of the College of 1982 and served as coordinator of the firm’s aries, a nonprofit educational organization Labor and Employment Lawyers. For 23 corporate and securities practice group. He developing documentaries for social change, years, he was on the board of governors of also served as Bacardi’s legal adviser for 10 and the Kendall Center for the Arts in the Santa Monica Boys & Girls Club, where years and later helped to negotiate the Belmont. Early in his career, he lived in the David A. Cathcart College Scholarship company’s acquisition of Martini & Rossi. In London and supervised the production of Fund has been established. 1996, he joined Bacardi as executive vice low-budget films. He served in both the U.S. president. In the 1980s, he was deputy Army and U.S. Air Force reserves. Stephen A.A. Goddard ’68 of Honolulu counsel to the Republican National died Dec. 31, 2003. He owned a yacht Committee, and he was a board member of William R. Carlson ’66 of Gates Mills, brokerage, The Yacht Connection, in the Institute for Advanced Studies in Aging Ohio, died July 25, 2003. An attorney, real Honolulu, beginning in 1990. He moved to and Geriatric Medicine. He served in the estate agent and businessman, he sold real Hawaii in 1985, after a career in law and U.S. Army Reserve for 11 years. estate for the Smythe, Cramer Co. He previ- business in Minneapolis and Austin, Texas. ously practiced law, did business manage- Frank A. Rosenfeld ’76 of Arlington, Va., ment consulting for McKinsey & Co. and Stuart R. Abelson ’69 of Chicago died died Sept. 29, 2003. Formerly of Squirrel was a principal in Technicare, a developer of Oct. 22, 2003. He practiced poverty law in El Hill, he was a trial attorney with the U.S. medical diagnostic equipment. He was pres- Paso, Texas, and New York City before Department of Justice, Civil Division. ident of Mayfield Country Club’s curling returning to Chicago and working in his association in Cleveland. family’s business, Barton Brands. After the Jerome McCristal Culp Jr. ’78 of business was sold in 1982, he was an invest- Durham, N.C., died Feb. 5, 2004. For nearly J. Frank Osha ’66 of McLean, Va., died ment manager and adviser while pursuing 20 years, he was a professor at Duke Univer- Jan. 29, 2004. A patent lawyer, he was a his interests in photography and traveling. sity School of Law. He specialized in race senior partner at Sughrue Mion, an intellec- and the law, law and economics, and labor tual property firm in Washington, D.C. Charles J. Beard II ’69 of Lexington, economics issues. From 1989 to 1993, he was Earlier in his career, he worked as an IP Mass., died March 30, 2004. A nationally director of the John M. Olin Program in Law counsel for Communications Satellite Corp. recognized authority on cable television and Economics at Duke. He began his career During the 1960s and 1970s, he sang with regulation and business law, he worked at with the Rockefeller Foundation in New the Dupont Circle Consortium, and he once Foley, Hoag & Eliot in Boston for 30 years York City, working on youth employment performed at the Kennedy Center with the and was the first African-American to be and affirmative action issues. Paul Hill Chorale. named a partner by a major Boston law firm. Prior to joining the firm in 1974, he 1980-1989 Lyman R. Patterson S.J.D. ’66 of Athens, worked for the Boston Model City Adminis- Ga., died Nov. 5, 2003. A legal ethics and tration. He served on a number of commu- Henry N. Winters ’81 of Franklin, Mich., copyright professor for 45 years, his nity and professional boards, including as a died Aug. 7, 2003. He was a director at Ford teaching career included stints at the law charter trustee of Phillips Academy in Motor Co., Division of Corporate Finance, in schools of Mercer, Vanderbilt and Emory Andover and chairman of the board of Dearborn, Mich. He previously practiced in universities. From 1986 to the fall of 2003, he trustees of WGBH. He was also a director of New York with the law firms of Cahill was the Pope F. Brock Professor of Profes- Blue Cross Blue Shield of Massachusetts. Gordon & Reindel and Shearman & Sterling. sional Responsibility at the University of Georgia School of Law. He was dean of Jacob C. Diemert ’69 of Acton, Mass., Karin I. Henrikson ’87 of Auburn, W.Va., Emory University School of Law from 1973 died Nov. 7, 2003. He served as Stow town died Aug. 30, 2003. She formerly lived in to 1980. He also served as special assistant counsel for 30 years and was a partner at Canterbury, N.H. attorney general of Georgia for copyright Wilson & Orcutt of Acton since 1996. He matters. For his HLS S.J.D. thesis, he wrote began his career at Sherburne, Powers and 1990-1999 “Copyright in Historical Perspective.” He Needham in Boston, where he was a partner also co-wrote “The Nature of Copyright” for 20 years. A lecturer and writer on busi- Elizabeth R. Turner ’90 of Dallas died and wrote a casebook on legal ethics. ness and municipal subjects, including Oct. 12, 2003. A partner at Hughes & Luce in “Municipal Law” and “Massachusetts Dallas, she joined the firm after graduating David A. Cathcart ’67 of Pasadena, Calif., Handbook of Legal Research,” he was presi- from HLS and specialized in estate planning

summer 2004 harvard law bulletin 83 GALLERY RETROSPECTIVE

Professor Archibald Cox, 1912-2004, taught the nation what it means to be true to one’s principles.

Archibald Cox in his office at HLS Lessons in Courage

professor emeritus archibald cox ’37 died on May 29 at age 92. Tenured at Harvard Law School in 1946, he taught genera- tions of students torts, administrative and constitutional law. In addition, the Watergate special prosecutor taught a nation about the primacy of the rule of law and the power of public service. In the famous press conference that preceded his firing, he explained to the American people why he had to refuse to obey a presidential order that violated not only his principles but the spirit of the Constitution. “Whether ours shall continue to be a government of laws and not of men,” he said before his departure, “is now for Congress and ultimately the American people to decide.” More on the life of the law professor, solicitor general and public servant—who left his mark on the law school and on history—in the next issue of the Bulletin. P A memorial service is scheduled for Oct. 8 at 2 p.m. in Memorial Church, Harvard Yard.

photographs: burk uzzle (top), john chapin (bottom) CLOSING A Conversation with M. BERNARD AIDINOFF ’53

M. Bernard Aidinoff ’53 is senior counsel at Sullivan & On Intellectual Boot Camp Cromwell in New York City, where he and Supreme Gossip has practiced for nearly 50 years. A recent recipient of You’re from the Class of 1953, the first Do you think of law practice today as a profession or an the Distinguished Harvard Law School class to include industry? Service Award of the women. What was that like from your ABA’s section of I haven’t heard it put quite that way, but there is no ques- taxation, Aidinoff perspective? tion that the private practice of law, particularly big-firm served as chairman Well, many of us had come from coed law, is a business. At the same time, there is constant of his 50th reunion colleges and universities, and quite awareness that professional standards must be main- gift committee and frankly, we thought it was weird that tained. So the question is: How do you retain the inde- is a member of the Harvard Law School did not have pendence of being a true professional? How do you retain HLS Visiting women prior to our class. The gen- collegiality, the camaraderie, the sense of purpose that you Committee. eral attitude was, “It’s about time.” are doing something more than just making money? But there was little recognition by As a supporter of the law school, you’re familiar with the cur- the men in our class of the significance of the change and rent campaign and the Strategic Plan. Is there a part of the its importance to the newly admitted women and to planning that really resonates with you? women in general. The expansion of the faculty is important. Harvard’s got After graduating, you clerked for Judge Learned Hand LL.B. the toughest standards for its faculty, and we all want that 1896, a real legend. What was that like? to continue. But you have to prepare years in advance for It was a great year. Hand was in his eighties and had sen- great professors not living forever. We need more cours- ior status; he did not carry a full caseload. The result was es in more areas, and in order to do that, we need a larg- I had a lot of one-on-one time with the judge. On Tues- er number of faculty members who have the capacity and day mornings, we would discuss the Supreme Court de- drive to be great scholars and great teachers. This also cisions that had been handed down on Monday. He would means that you have to take risks in recruiting younger always want to know what I thought, and we would argue faculty members. P the merits of the cases as well as the reasoning and quality of the opinions. Hand drafted his own opinions and the memoranda to the other judges. His clerks could make comments, disagree with him and on occasion convince him to make changes. His law clerks did not do first drafts. Hand was a wonderful gossip, and he spoke frankly about each of the justices. We also frequently rode the subway home together in the evening. Was there a particularly memorable moment? The whole experience was memorable. I was very lucky! You’ve spent nearly 50 years in practice. When you look back, what was the most valuable part of your HLS training? First year, to me, was one of the most marvelous experiences I ever had. The type of training, the rigor, the method of argument—it was really intellectual boot camp. I loved nearly all of the first-year classes, and I had some amazing professors (Fuller, Kaplan and Seavey). They were truly masters of the Socratic method. We had one or two teachers who weren’t quite as good, but we forget about them. What has been your main area of practice? Tax, particularly corporate and international tax. But I still don’t know how to fill out a return. photograph by joshua paul “The whole world is interested in intellectual property right now.” Professor Lloyd Weinreb ’62 JOSHUA PAUL

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